EXHIBIT 99.1
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made as of the 31/st/ day of March, 1998, by and among Xxxxxxx
X. Xxxxx Residential Realty L.P., a Delaware limited partnership (the
"Borrower"), PNC Bank, National Association, as Administrative Agent and as a
Bank, NationsBank, N.A., as Syndication Agent and as a Bank, and U.S. Bank
National Association, as Documentation Agent and as a Bank.
W I T N E S S E T H:
WHEREAS, as of February 26, 1998, the above-referenced parties entered into
the Third Amended and Restated Credit Agreement (the "Agreement") which provides
for a $250,000,000 unsecured revolving line of credit to be made available by
the Banks to the Borrower; and
WHEREAS, the parties have agreed to amend the Agreement to reflect certain
matters which have been agreed to by the parties, including, without limitation,
an increase in the amount of the Commitments (as hereinafter defined) to
$300,000,000, and an increase in the amount of the Commitment of PNC Bank,
National Association, from $150,000,000 to $200,000,000.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and sufficiency thereof being hereby acknowledged, and intending to
be legally bound hereby, covenant and agree as follows:
1. All capitalized terms employed herein shall have the meanings ascribed
thereto in the Agreement unless defined to the contrary herein.
2. The definition of the term "Applicable Margin" is hereby amended to
provide in full as follows:
"Applicable Margin" means, with respect to each Loan during any period
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when neither CESRRI nor Borrower maintains the Investment Grade Ratings, the
respective percentages per annum determined, based on the range into which
Borrower's Leverage Ratio then falls, in accordance with the table set forth
below. Any change in Borrower's Leverage Ratio causing it to move to a
different range on the table shall effect a change in the Applicable Margin,
effective on the earlier of (i) the date of the Compliance Certificate
reflecting such change in the Leverage Ratio, or (ii) the last day on which a
Compliance Certificate is required to be delivered to the Administrative Agent
in accordance with the provisions hereof:
Applicable
Margin for Applicable
Range of Base Rate Margin for Euro-
Borrower's Loans Dollar Loans
Leverage Ratio (% per annum) (% per annum)
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Less than 25% 0.0 0.75
Greater than or
equal to 25%
and less than 35% 0.0 0.85
Greater than or
equal to 35%
and less than 45% 0.0 0.95
Greater than or
equal to 45%
and less than 55% 0.0 1.10
During any period when either CESRRI or Borrower shall maintain the
Investment Grade Ratings, "Applicable Margin" shall mean, with respect to each
Loan, the respective percentages per annum, determined, at any time, based on
the Credit Ratings then applicable, in accordance with the table set forth
below.
Applicable
Margin for Applicable
Credit Rating Base Rate Margin for Euro-
(S&P/Xxxxx'x Loans Dollar Loans
Ratings) (% per annum) (% per annum)
----------------- ------------- -------------
A-/A3 or higher 0.0 0.60
BBB+/Baa1 0.0 0.70
BBB/Baa2 0.0 0.80
BBB-/Baa3 0.0 0.90
If Borrower or CESRRI, as applicable, shall maintain two (2) Credit Ratings, and
such ratings are not equivalent, Applicable Margin shall be based upon the lower
of the two ratings. In the event that Borrower or CESRRI, as applicable,
receives more than two (2) Credit Ratings, and such ratings are not equivalent,
the Applicable Margin shall be determined by the lower of the two (2) highest
ratings, provided that at least one (1) of such highest ratings shall be a
Credit Rating from S&P or Moody's. In the event that at least one (1) of the
two (2) highest ratings shall not be a Credit Rating from S&P or Moody's, then
the Applicable Margin shall be determined by the lowest of the ratings. In the
event that only one of the Rating Agencies shall have set Borrower's or CESRRI's
Credit Rating, or Borrower or CESRRI, as applicable, shall not maintain the
Investment Grade Ratings, then the Applicable Margin shall be based on
Borrower's Leverage Ratio as set forth above. Notwithstanding anything
contained to the contrary, the Borrower shall always have the right to elect
that the Applicable Margin be determined based upon its Leverage Ratio by
written notice to the Administrative Agent with such election to become
effective upon the next Domestic Business Day following receipt of such notice
by Administrative Agent. Any change in the Applicable Margin resulting from a
change in a Credit Rating shall become effective on the effective date of the
change in the applicable Credit Rating.
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3. The definition of the term "Budgeted Project Costs" is hereby amended
to provide in full as follows:
"Budgeted Project Costs" means with respect to Properties under
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Development, the budgeted cost of completion of such Properties under
Development, provided that the budgeted costs shall include projected operating
deficits through completion and the projected date of occupancy of seventy-five
percent (75%) of the dwelling units and provided further that, for Properties
under Development by Investment Affiliates, the Budgeted Project Costs shall be
the Borrower's share of the budgeted costs of completion (based on the greater
of (x) the Borrower's percentage equity interest in the Investment Affiliates or
(y) the Borrower's obligation to provide funds to the Investment Affiliates,
which could include, for example, completion guaranties).
4. The definition of the term "Cash and Cash Equivalents" is hereby
amended to provide in full as follows:
"Cash and Cash Equivalents" shall mean (i) cash, (ii) direct
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obligations of the United States Government, including without limitation,
treasury bills, notes and bonds, (iii) interest bearing or discounted
obligations of Federal agencies and Federal government-sponsored entities or
pools of such instruments offered by Approved Banks and dealers, including
without limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass through
certificates, Federal National Mortgage Association bonds and notes, and Federal
Farm Credit System securities, (iv) time deposits, Domestic and Euro-Dollar
certificates of deposit, bankers acceptances, commercial paper rated at least
A-1 by S&P and P-1 by Moody's and/or guaranteed by a Person maintaining an Aa2
rating by Moody's, an AA rating by S&P or better rated credit, floating rate
notes, other money market instruments and letters of credit each issued by
Approved Banks (provided that the same shall cease to be a "Cash or Cash
Equivalent" if at any time any such bank shall cease to be an Approved Bank),
(v) obligations of domestic corporations, including, without limitation,
commercial paper, bonds, debentures and loan participations, each of which is
rated at least AA by S&P and/or Aa2 by Moody's and/or guaranteed by a Person
maintaining an Aa2 rating by Xxxxx' s, an AA rating by S&P or better rated
credit, (vi) obligations issued by state and local governments or their
agencies, rated at least MIG-1 by Moody's and/or SP-1 by S&P and/or guaranteed
by an irrevocable letter of credit of an Approved Bank (provided that the same
shall cease to be a "Cash or Cash Equivalent" if at any time any such bank shall
cease to be an Approved Bank), and (vii) repurchase agreements with Approved
Banks and primary government security dealers fully secured by the U.S.
Government or agency collateral equal to or exceeding the principal amount on a
daily basis and held in safekeeping.
5. The definition of the term "Closing Date" is hereby amended to provide
in full as follows:
"Closing Date" means March 2, 1998.
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6. The definition of the term "Commitment" is hereby amended to provide
in full as follows:
"Commitment" means, with respect to each Bank, the amount set forth
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opposite the name of such Bank on Schedule I hereto (and, for each Bank which is
an Assignee, the amount set forth in the Assignment and Assumption Agreement
entered into pursuant to Section 9.6(c) as the Assignee's commitment), as such
amount may be reduced or increased from time to time pursuant to the provisions
hereof, which Commitments, on the Effective Date, aggregate the sum of Three
Hundred Million Dollars ($300,000,000).
7. Subparagraph h of the definition of the term "Permitted Liens" is
hereby amended to provide in full as follows:
h. Liens in favor of the Borrower or any Consolidated Subsidiary
against any Property of any other Consolidated Subsidiary of the Borrower,
provided that (i) the Property is located in the District of Columbia, (ii) the
amount secured by all such Liens does not exceed twenty percent (20%) of the
Unencumbered Asset Value, (iii) if the secured indebtedness is held by a
Consolidated Subsidiary, such Consolidated Subsidiary shall execute and deliver
a Guaranty to the Administrative Agent, (iv) the Administrative Agent on behalf
of the Banks shall be granted a first-lien security interest in the Lien and the
documents evidencing the indebtedness secured thereby upon terms and conditions
reasonably acceptable to the Administrative Agent, and (v) the Borrower shall
deliver to the Administrative Agent such due diligence materials and opinion
letters concerning the execution of such security documents as the
Administrative Agent reasonably shall request.
8. The definition of the term "Qualifying Unencumbered Property" is
hereby amended to provide in full as follows:
"Qualifying Unencumbered Property" means any Property from time to
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time which (i) is an operating and primarily multifamily residential Property
wholly-owned in fee simple absolute by Borrower, or a Consolidated Subsidiary,
provided that (A) the ownership interest in any such Property may be held
pursuant to a Qualifying Ground Lease, (B) the Worldgate Retail Property may
qualify as a Qualifying Unencumbered Property even though it is not a multi-
family residential Property as long as it satisfies the other requirements
hereof, and (C) any Property owned by a Consolidated Subsidiary that is not
wholly-owned by the Borrower and CESRRI may be included as a Qualifying
Unencumbered Property as long as all such Properties which are owned by
Subsidiaries which are not wholly-owned by the Borrower and CESRRI in the
aggregate do not exceed twenty-five percent (25%) of Unencumbered Asset Value,
(ii) is not subject (nor are any equity interests in such Property subject) to a
Lien which secures Indebtedness of any Person other than Permitted Liens, or to
any agreement which, with the passage of time or the occurrence of any
condition, would result in a Lien which secures Indebtedness of any Person other
than Permitted Liens, (iii) is not subject (nor are any equity
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interests in such Property subject) to any covenant, condition, or other
restriction which prohibits or limits the sale of, or the creation or assumption
of any Lien upon such Property, except for any Restricted Asset as long as the
Restricted Asset Penalties do not exceed the limitations set forth in (x) below,
and also provided that a general limitation on the amount of Secured Debt which
may be incurred or certain ratios relating to Secured Debt shall not be
construed to constitute a covenant, condition or other restriction which
prohibits or limits the creation or assumption of any Lien on such Property,
(iv) shall be an institutional-class Property, (v) shall have been substantially
completed, shall be free from all material structural and title defects and
shall not be subject to any material renovation project, as certified in writing
by the Borrower to the Administrative Agent, (vi) shall be free from any
Materials of Environmental Concern, in violation of any Environmental Laws, as
certified in writing by the Borrower to the Administrative Agent and as verified
by an environmental assessment report, unless such verification shall be waived
by Administrative Agent in writing, (vii) is occupied by tenants under bona fide
leases occupying at least eighty-five percent (85%) of the residential units,
provided that Properties which are less than eighty-five percent (85%) occupied
may be included as Qualifying Unencumbered Properties, as long as such
Properties do not exceed thirty percent (30%) of Unencumbered Asset Value,
(viii) does not, in the case of any single Property, represent more than twenty
percent (20%) of the Unencumbered Asset Value, except for the Lincoln Towers
Property and any other Property approved by the Required Banks, (ix) is located
in an Approved CMSA, provided that Properties located in Approved CMSA's other
than the Washington/Baltimore CMSA shall not exceed fifty-percent (50%) of
Unencumbered Asset Value, and (x) may constitute a Restricted Asset, provided,
however, a Property shall not constitute a Qualifying Unencumbered Property to
the extent that the addition of such Property to the Qualifying Unencumbered
Properties would cause the Restricted Asset Penalties to exceed seven and one-
half percent (7.5%) of the Unencumbered Asset Value. Notwithstanding the
foregoing limitations, any other Property shall constitute a Qualifying
Unencumbered Property if it has been so approved by the Required Banks in their
sole and absolute discretion.
8. The definition of the term "Syndication Period" is hereby amended to
provide in full as follows:
"Syndication Period" means the period beginning on the Effective Date
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and ending on the earlier of (i) the date which is one-hundred twenty days
following the Effective Date or (ii) the date on which PNC shall have reduced
its Commitment to a maximum of $55,000,000.
9. Section 2.1(b) is hereby amended to provide in full as follows:
(b) If at any time the outstanding principal balance of the Loans and
the Letter of Credit Usage exceeds the Loan Availability, Borrower shall submit
to the Administrative Agent, not later than fifteen (15) days following written
notice from the Administrative Agent to Borrower (which notice Administrative
Agent shall send to the Borrower promptly following receipt of a Compliance
Certificate reflecting such excess borrowing condition, and copy of which notice
shall be sent promptly by the Administrative Agent to each Bank) of the
existence of such
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excess borrowing condition, a written plan pursuant to which Borrower shall
cause such excess borrowing condition to be eliminated not later than thirty
(30) days following such notice from the Administrative Agent to the Borrower,
through one or both of the following means: Borrower shall (A) pay to the
Administrative Agent such amounts and/or (B) designate to the Administrative
Agent such additional Qualifying Unencumbered Properties as may be acceptable
under Section 5.14 as are necessary so that the outstanding principal balance of
the Loans and the Letter of Credit Usage does not exceed the Loan Availability.
Failure by Borrower to have complied with the foregoing in a timely manner shall
constitute an Event of Default without further notice or grace period hereunder.
No further Borrowings shall be permitted, and the Borrower shall not cause or
allow any existing Qualifying Unencumbered Property to no longer be a Qualifying
Unencumbered Property, so long as such excess borrowing condition shall continue
to exist. Nothing in this Section 2.1(b) shall excuse Borrower's compliance with
all terms, conditions, covenants and other obligations imposed upon it under the
Loan Documents during the period of such excess borrowing, nor in any manner
condition or impair the Banks' rights thereunder in respect of any such breach
thereof by Borrower.
10. Section 2.3(a) is hereby amended to provide in full as follows:
SECTION 2.3. Money Market Borrowings.
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(a) The Money Market Option. From time to time during the Term
-----------------------
following the end of the Syndication Period, and provided that at such time
either Borrower or CESRRI maintains the Investment Grade Ratings, the Borrower
may, as set forth in this Section 2.3, request the Banks during the Term to make
offers to make Money Market Loans to the Borrower, provided that the aggregate
amount of Money Market Loans shall not exceed, at any time, the lesser of (i)
$150,000,000 in the aggregate outstanding, and (ii) (A) the lesser of (I) the
aggregate Commitments or (II) Loan Availability, minus (B) all other Loans then
outstanding and Letter of Credit Usage, and (iii) fifty percent (50%) of the
lesser of (A) the aggregate Commitments or (B) Loan Availability. Subject to
the provisions of this Agreement, the Borrower may repay any outstanding Money
Market Loan only on the last day of the Interest Period applicable thereto and
any amounts so repaid may be reborrowed, up to the amount available under this
Section 2.3 or under Section 2.1, as applicable, at the time of such Borrowing,
until the Domestic Business Day next preceding the Maturity Date. The Banks
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section 2.3.
11. Section 2.5(a) is hereby amended to provide in full as follows:
SECTION 2.5. Notes.
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(a) The Base Rate Loans and the Euro-Dollar Loans of each Bank shall
be evidenced by a single Revolving Credit Note in the amount of its Commitment
payable to the order of such Bank for the account of its Applicable Lending
Office. The Money Market Loans
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of each Bank, including each Designated Lender, shall be evidenced by a single
Bid Rate Note in the amount of up to $150,000,000, payable to the order of such
Bank for the account of its Applicable Lending Office.
12. Section 2.8(a) is hereby amended to provide in full as follows:
SECTION 2.8. Fees.
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(a) Facility Fee. At any time while the Investment Grade Ratings are
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not maintained, the Borrower shall pay to the Administrative Agent for the
account of the Banks ratably in proportion to their respective Commitments a
facility fee (the "Facility Fee") on the aggregate Commitments at the respective
percentages per annum based upon the range into which the Borrower's Leverage
Ratio then falls, in accordance with the following table. Any change in
Borrower's Leverage Ratio causing it to move to a different range on the table
shall effect an immediate change in the Facility Fee, effective on the earlier
of (i) the date of the Compliance Certificate reflecting such change in the
Leverage Ratio, or (ii) the last day on which a Compliance Certificate is
required to be delivered in accordance with the provisions hereof:
Facility Fee
Leverage Ratio (% per annum)
-------------- -------------
Less than 25% 0.15
Greater than or equal to 25%
and less than 35% 0.15
Greater than or equal to 35%
and less than 45% 0.20
Greater than or equal to 45%
and less than 55% 0.20
During any time when either CESRRI or Borrower shall maintain the
Investment Grade Ratings, "Facility Fee" shall mean a facility fee on the
aggregate Commitments at the respective percentages per annum based upon the
Credit Ratings then applicable in accordance with the following table.
Credit Rating Facility Fee
(S&P/Moody's Ratings) (% per annum)
--------------------- -------------
A-/A3 or higher 0.125
BBB+/Baa1 0.15
BBB/Baa2 0.15
BBB-/Baa3 0.20
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Any change in Credit Rating causing it to move into a different range on the
table shall effect an immediate change in the applicable percentage per annum.
If CESRRI or Borrower shall maintain two (2) Credit Ratings, and such ratings
are not equivalent, the Facility Fee shall be based upon the lower of such
Credit Ratings. In the event that CESRRI or Borrower receives more than two (2)
Credit Ratings, and such ratings are not equivalent, the Facility Fee shall be
determined by the lower of the two (2) highest ratings, provided that at least
one of such highest Credit Ratings shall be from S&P or Moody's. In the event
that at least one of the two (2) highest ratings shall not be a Credit Rating
from S&P or Moody's, then the applicable percentage per annum shall be
determined by the lowest of the ratings. In the event that only one (1) Rating
Agency has set the Borrower's or CESRRI's Credit Rating, or CESRRI or Borrower
does not maintain the Investment Grade Ratings, then the Facility Fee shall be
based on Borrower's Leverage Ratio as set forth above. Notwithstanding anything
herein contained to the contrary, the Borrower shall always have the right to
elect that the Facility Fee be determined based upon its Leverage Ratio by
written notice to Administrative Agent, with such election to become effective
upon the next Domestic Business Day following receipt of such notice by the
Administrative Agent. Any change in the Facility Fee resulting from a change in
a Credit Rating shall become effective on the effective date of the change in
the applicable Credit Rating. The Facility Fee shall be payable quarterly in
arrears on each January 1, April 1, July 1 and October 1 during the Term. The
Facility Fee for any partial calendar quarter shall be prorated as provided in
Section 2.14.
13. Section 5.13(b) is hereby amended to provide in full as follows:
(b) Indebtedness. (i) CESRRI shall not directly or indirectly,
------------
create, incur, assume or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, including, without limitation, any
Contingent Obligation.
(ii) CESRRI shall not permit any of its subsidiaries, the Borrower
or any of the Borrower's Subsidiaries to, directly or indirectly, create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, including, without limitation, any Contingent Obligation,
except:
(A) the Obligations; and
(B) Indebtedness which, after giving effect thereto, may be
incurred or may remain outstanding without giving rise to an Event of Default or
Default under any provision of this Article V.
14. Section 5.14(d) is hereby amended to provide in full as follows:
(d) A Property shall cease to be included in the calculation of
Unencumbered Asset Value and its Net Operating Income shall cease to be included
in the calculation of Unencumbered NOI if it shall cease to be a Qualifying
Unencumbered Property.
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15. Section 9.5 is hereby amended to provide in full as follows:
SECTION 9.5. Amendments and Waivers.
----------------------
Any provision of this Agreement or the Notes, the Letters of Credit or
other Loan Documents may be amended or waived or consented to if, but only if,
such amendment, waiver or consent is in writing and is signed by the Borrower,
the Administrative Agent, and the Required Banks provided that no such
amendment, waiver or consent with respect to this Agreement, the Notes, the
Letters of Credit or any other Loan Documents shall, unless signed by all the
Banks, (i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section 9.5 or any other provision of this Agreement, (v) release the
Guaranties, or (vi) modify the provisions of this Section 9.5.
16. Section 9.6(b) is hereby amended to provide in full as follows:
(b) Any Bank may at any time grant (i) prior to the occurrence of an
Event of Default, to an existing Bank, one or more banks, finance companies,
insurance companies or other financial institutions in minimum amounts of not
less than $10,000,000 (or any lesser amount in the case of participations to an
existing Bank or in the case of participations with respect to Money Market
Loans only) and (ii) after the occurrence and during the continuance of an Event
of Default, to any Person in any amount (in each case, a "Participant"),
participating interests in its Commitment or any or all of its Loans. Any
participation made during the continuation of an Event of Default shall not be
affected by the subsequent cure of such Event of Default. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Administrative Agent, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the Obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
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agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii), (iv)
or (v) of Section 9.5 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article VIII with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent
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of, and subject to the restrictions with respect to, a participating interest
granted in accordance with this subsection (b).
17. Section 9.6(c) is hereby amended to provide in full as follows:
(c) Any Bank may at any time assign to (i) prior to the occurrence of
an Event of Default, an existing Bank or one or more banks, finance companies,
insurance or other financial institutions in minimum amounts of not less than
Ten Million Dollars ($10,000,000) (or any lesser amount in the case of
assignments to an existing Bank) and (ii) after the occurrence and during the
continuance of an Event of Default, to any Person in any amount (in each case,
an "Assignee"), all or a proportionate part of all, of its rights and
obligations under this Agreement, the Notes and the other Loan Documents, and,
in either case, such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit
"E" hereto executed by such Assignee and such transferor Bank, , provided that,
as long as no Event of Default shall have occurred and be continuing, any such
assignment shall be subject to the prior written consent of the Administrative
Agent and the Borrower, which consent of the Borrower shall not be unreasonably
withheld or delayed; provided that if an Assignee is an affiliate of such
transferor Bank or was a Bank immediately prior to such assignment, no such
consent shall be required; and provided further that such assignment may, but
need not, include rights of the transferor Bank in respect of outstanding Money
Market Loans. Upon its receipt of an Assignment and Assumption Agreement
executed by a transferor Bank and an Assignee, Administrative Agent shall, if
such Assignment and Assumption Agreement has been properly completed and is in
substantially the form of Exhibit E, (i) accept such Assignment and Assumption
Agreement, (ii) record the information contained therein in the Administrative
Agent's records, and (iii) give prompt notice thereof to Borrower. Upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and no further consent
or action by any party shall be required and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee, and,
if necessary, to the transferor Bank. Upon execution and delivery of such
replacement Notes, the original Notes evidencing all or the portion of the
Commitment being assigned shall be canceled and returned to Borrower. In
connection with any such assignment, the transferor Bank shall pay to the
Administrative Agent an administrative fee for processing such assignment in the
amount of $3,000. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
8.4. Any assignment made during the continuation of an Event of Default shall
not be affected by any subsequent cure of such Event of Default.
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18. Section 9.6 is hereby amended by the addition of the following as
subsection (h):
(h) Anything in this Section 9.6 to the contrary notwithstanding, no
Bank may assign or participate any interest in any Loan held by it hereunder to
Borrower, CESRRI or any of their respective affiliates or Subsidiaries.
19. Exhibit F to the Agreement is hereby deleted and Exhibit F attached
hereto shall be substituted therefor.
20. Schedule I to the Agreement is hereby deleted and Schedule I attached
hereto shall be substituted therefor.
21. Except as specifically modified herein, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
22. This Amendment may be executed by the parties hereto in multiple
counterparts, and, when so executed by all of the parties, such multiple
counterparts shall be deemed to constitute a single, integrated agreement.
23. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the day and year first above written.
XXXXXXX X. XXXXX RESIDENTIAL REALTY L.P.,
By: Xxxxxxx X. Xxxxx Residential Realty, Inc., a
Maryland corporation, its general partner
By: X.X. Xxxxxx,
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X.X. Xxxxxx,
Senior Vice President,
Chief Financial Officer, and
Treasurer
PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent and as a Bank
By: X X Xxxxx III
--------------------------------
Name: X X Xxxxx III
-------------------------
Title: Vice President
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NATIONSBANK, N.A, as Syndication Agent and as a
Bank
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
U.S. BANK NATIONAL ASSOCIATION, as
Documentation Agent and as a Bank
By:
--------------------------------
Name:
-------------------------
Title:
-------------------------
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CONSENT
The undersigned, having executed and delivered the Guaranties as defined in
the Credit Agreement referenced in the foregoing First Amendment to Third
Amended and Restated Credit Agreement, hereby consent to the First Amendment to
Third Amended and Restated Credit Agreement and to the amendments to the Credit
Agreement contained therein, and hereby ratify and confirm the undersigned's
obligations under the Guaranties. All references in the respective Guaranties
executed by the undersigned to defined terms in the Credit Agreement are hereby
amended in accordance with the First Amendment to Third Amended and Restated
Credit Agreement and all references in the respective Guaranties executed by the
undersigned to the Credit Agreement shall be deemed to refer to the Credit
Agreement as amended by the First Amendment to Third Amended and Restated Credit
Agreement.
METROPOLITAN ACQUISITION FINANCE L.P., a
Delaware limited partnership
By: XXXXX SEVEN, INC., a Delaware
corporation, its general partner
By: X.X. Xxxxxx
--------------------------------
X.X. Xxxxxx
Vice President and
Treasurer
FIRST HERNDON ASSOCIATES L.P., a Virginia limited
partnership
By: XXXXX FIVE, INC., a Delaware
corporation, its general partner
By: X.X. Xxxxxx
--------------------------------
Vice President and
Treasurer
13
XXXXX PROPERTY HOLDINGS VAN NESS L.P.,
a Delaware limited partnership
By: XXXXX SIX, INC., a Delaware
corporation, its general partner
By: X.X. Xxxxxx
--------------------------------
X.X. Xxxxxx
Vice President and
Treasurer
XXXXX PROPERTY HOLDINGS FIVE (D.C.) L.P., a Delaware
limited partnership
By: XXXXX FIVE, INC., a Delaware
corporation, its general partner
By: X.X. Xxxxxx
--------------------------------
X.X. Xxxxxx
Vice President and
Treasurer
XXXXX PROPERTY HOLDINGS FIVE L.P., a Delaware limited
partnership
By: XXXXX FIVE, INC., a Delaware
corporation, its general partner
By: X.X. Xxxxxx
--------------------------------
X.X. Xxxxxx
Vice President and
Treasurer
14
XXXXX PROPERTY HOLDINGS LINCOLN TOWERS L.L.C., a
Virginia limited liability company
By: XXXXXXX X. XXXXX RESIDENTIAL REALTY
L.P., a Delaware limited
partnership
By: Xxxxxxx X. Xxxxx Residential Realty,
Inc., a Maryland corporation, its general
partner
By: X.X. Xxxxxx
--------------------------------
X.X. Xxxxxx
Senior Vice President,
Chief Financial Officer and
Treasurer
XXXXX PROPERTY HOLDINGS ONE EAST DELAWARE L.L.C., a
Delaware limited liability company
By: XXXXXXX X. XXXXX RESIDENTIAL REALTY
L.P., a Delaware limited
partnership
By: Xxxxxxx X. Xxxxx Residential Realty,
Inc., a Maryland corporation, its general partner
By: X.X. Xxxxxx
----------------------------------
Name: X.X. Xxxxxx
--------------------------------
Title: Senior Vice President and CFO
-------------------------------
15
EXHIBIT F
Qualifying Unencumbered Properties
----------------------------------
1. One East Delaware
2. Lincoln Towers
3. Westerly at Worldgate
4. Boulevard of Old Town/Governor Spotswood Manor
5. Xxx Xxxx South
6. Suburban Towers
7. Hunington
8. Manor
9. Worldgate (Retail)
10. Albemarle
16
SCHEDULE I
COMMITMENTS OF BANKS
PERCENTAGE
OF
BANK COMMITMENT COMMITMENT
---- ------------ -----------
PNC BANK, NATIONAL
ASSOCIATION $200,000,000 66 2/3%
U.S. BANK NATIONAL
ASSOCIATION $ 50,000,000 16 2/3%
NATIONSBANK, N.A. $ 50,000,000 16 2/3%
17
CONSENT
The undersigned, having executed and delivered the Joinder attached to the
Credit Agreement referenced in the foregoing First Amendment to Third Amended
and Restated Credit Agreement, hereby consents to the First Amendment to Third
Amended and Restated Credit Agreement and to the amendments to the Credit
Agreement contained therein, and hereby ratifies and confirms the undersigned's
obligations under the Joinder.
XXXXXXX X. XXXXX RESIDENTIAL REALTY, INC.
a Maryland corporation
By: X.X. Xxxxxx
----------------------------------------
Name: X.X. Xxxxxx
--------------------------------------
Title: Senior Vice President and CFO
-------------------------------------
18
