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EXHIBIT 99.3
FIRST AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made as of the 20th day of June, 2000, by and among Charles E.
Smith Residential Realty L.P., a Delaware limited partnership (the "Borrower"),
PNC Bank, National Association, as Administrative Agent and as a Bank, Bank of
America, N.A., as Syndication Agent and as a Bank, U.S. Bank National
Association, as Documentation Agent and as a Bank, and the other Banks which are
parties to the Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, as of November 20, 1998, the above-referenced parties entered into
the Fourth Amended and Restated Credit Agreement (the "Agreement") which
provides for a $185,000,000 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,
a modification to the covenant contained in Section 5.8(f) of the Agreement.
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. Section 5.8(f) of the Agreement is hereby amended to provide in full
as follows, effective for the period from April 1, 2000, through September 30,
2000:
(f) Distributions.
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(i) Subject to Section 5.8(f)(ii) below, aggregate distributions
to holders of all common and preferred OP Units of Borrower shall not exceed the
greater of (i) ninety-percent (90%) of Funds from Operations, for the four (4)
consecutive Fiscal Quarters ending on the last day of each Fiscal Quarter, or
(ii) the minimum amount that must be distributed to all partners of Borrower so
that CESRRI will receive sufficient distributions to enable it to
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distribute to its shareholders the amount required to remain qualified as a real
estate investment trust as defined in Section 856 of the Internal Revenue Code
(or any successor provision thereto).
For purpose of this Section 5.8, the term "distributions" shall mean
and include all dividends and other distributions to, and the repurchase of
stock or limited partnership interests from, the holder of any equity interests
in Borrower or CESRRI. Notwithstanding the above, distributions shall not
include payments of cash in connection with the redemption or repurchase of OP
Units where the Borrower is obligated to any Person (other than CESRRI) to do so
in accordance with the provisions of Borrower's limited partnership agreement or
the purchase of stock for the purpose of obtaining the consideration to be
provided to a Person transferring a Property to the Borrower or a Consolidated
Subsidiary where the market price of such stock is below the value attributed to
such stock in the purchase agreement.
(ii) Aggregate distributions during the continuance of any Event
of Default shall not exceed the amount described in clause (ii) of Section
5.8(f)(i) above, provided that the parties hereto expressly acknowledge that
this Section 5.8(f)(ii) shall in no event limit or restrict in any way any of
Administrative Agent's or any Bank's rights, remedies or recourse under this
Agreement or any other Loan Document.
3. Effective on October 1, 2000, the foregoing amendment to Section
5.8(f) of the Agreement shall be rescinded and thereafter Section 5.8(f) shall
be reinstated in its form as contained in the Agreement as originally executed.
4. Borrower represents and warrants that the representations and
warranties contained in Article IV of the Agreement are true and correct in all
material respects on and as of the date hereof as though made on and as of such
date. Borrower certifies that no Default or Event of Default has occurred and is
continuing on and as of the date hereof.
5. Except as specifically modified herein, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
6. The term "Agreement" as used in the Agreement, the other Loan
Documents and any other instrument, document or writing furnished to the
Administrative Agent or the Banks by the Borrower shall mean the Agreement as
hereby amended.
7. 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.
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8. This Amendment (a) shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns (provided,
however, that no party may assign its rights hereunder except in accordance with
the Agreement); (b) may be modified only in accordance with the Agreement; (c)
shall be governed and construed in accordance with the laws of the Commonwealth
of Virginia; and (d) embodies the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, consents and understandings relating to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the day and year first above written.
CHARLES E. SMITH RESIDENTIAL REALTY L.P.,
a Delaware limited partnership
By: Charles E. Smith Residential Realty, Inc., a
Maryland corporation, its general partner
By: ________________________________
W.D. Minami,
Executive Vice President and
Chief Financial Officer
PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent and as a Bank
By:______________________________________
Name:_________________________________
Title:________________________________
BANK OF AMERICA, 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:________________________________
FLEET NATIONAL BANK
By:______________________________________
Name:_________________________________
Title:________________________________
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ALLFIRST BANK
By:_______________________________________
Name:__________________________________
Title:_________________________________
CHEVY CHASE BANK, F.S.B.
By:_______________________________________
Name:__________________________________
Title:_________________________________
FIRST UNION NATIONAL BANK
By:_______________________________________
Name:__________________________________
Title:_________________________________
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:_______________________________________
Name:__________________________________
Title:_________________________________
SUNTRUST BANK, successor in
interest to CRESTAR BANK
By:_______________________________________
Name:__________________________________
Title:_________________________________
THE CHASE MANHATTAN BANK
By:_______________________________________
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Name:__________________________________
Title:_________________________________
CONSENT
The undersigned, having executed and delivered the Joinder attached to the
Fourth Amended and Restated Credit Agreement referenced in the foregoing First
Amendment to Fourth Amended and Restated Credit Agreement, hereby consents to
the First Amendment to Fourth Amended and Restated Credit Agreement and to the
amendments to the Fourth Amended and Restated Credit Agreement contained
therein, and hereby ratifies and confirms the undersigned's obligations under
the Joinder.
CHARLES E. SMITH RESIDENTIAL REALTY, INC.,
a Maryland corporation
By:_____________________________________
W.D. Minami
Executive Vice President and
Chief Financial Officer
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