Exhibit 4.2
Joinder Agreement
THIS JOINDER AGREEMENT, dated as of the 31st day of December, 1997 (the
"Agreement"), to the Credit Agreement referred to below is entered into by and
among Cornerstone Realty Income Trust, Inc., a corporation organized under the
laws of Virginia ("Cornerstone"), each Additional Borrower party thereto
(collectively, with Cornerstone, the "Borrowers"), CRIT-NC, LLC, a limited
liability company organized under the laws of Virginia and a Subsidiary of
Cornerstone (the "Company"), such lenders party thereto (the "Lenders"), and
FIRST UNION NATIONAL BANK, a national banking association, as Agent (the
"Agent").
Statement of Purpose
The Borrowers, the Lenders and the Agent are parties to the Credit
Agreement dated as of October 30, 1997 (as supplemented hereby and as further
amended, restated, supplemented or otherwise modified, the "Credit Agreement").
Pursuant to an Operating Agreement dated as of December 9, 1997, the
Company has been formed to hold title to all Properties currently owned by
Cornerstone and located in the State of North Carolina. The Company is a
Wholly-Owned Subsidiary of Cornerstone and Cornerstone is the sole member and
manager of the Company. As a Subsidiary of Cornerstone, the Company is required
under the terms of the Credit Agreement to execute and deliver, among other
documents, a joinder to the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1.01 Joinder of Company.
(a) Joinder. Pursuant to Section 8.17 of the Credit Agreement, the
Company hereby agrees that it is a Borrower under the Credit Agreement as if a
signatory thereof on the Closing Date, and the Company shall comply with and be
subject to and have the benefit of all of the terms, conditions, covenants,
agreements and obligations set forth therein. The Company hereby agrees that
each reference to a "Borrower" or the "Borrowers" in the Credit Agreement and
other Loan Documents shall include the Company. The Company acknowledges that it
has received a copy of the Credit Agreement and that it has read and understands
the terms thereof.
(b) Schedules. Attached hereto are updated copies of each Schedule
referenced in the Credit Agreement revised to include all information required
to be provided therein with respect to (and only with respect to) the Company.
2.01 Effectiveness. This Agreement shall become effective upon receipt
by the Agent of (i) an originally executed Note for each Lender jointly executed
by each Borrower and the Company in exchange for the Notes issued on the Closing
Date or the date of the most recent Joinder Agreement, as applicable, (ii) an
originally executed counterpart hereof executed by the Borrower, the Agent and
the Required Lenders and (iii) any other agreement or document delivered
in accordance with Section 8.17 (including, without limitation, any Security
Document required to be executed thereunder).
3.01 General Provisions.
(a) Representations and Warranties. Each Borrower hereby confirms that
each representation and warranty made by it under the Loan Documents is true and
correct in all material respects as of the date hereof and that no Default or
Event of Default has occurred or is continuing under the Credit Agreement,
except for any deviations from such representations and warranties expressly
permitted by the Credit Agreement and except for any waivers of such
representations and warranties granted by the Required Lenders in writing. Each
such Borrower hereby represents and warrants that as of the date hereof there
are no claims or offsets against or defenses or counterclaims to their
respective obligations under the Credit Agreement or any other Loan Document.
(b) Limited Effect. Except as supplemented hereby, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. This Agreement shall not be deemed (i) to be a waiver of, or
consent to, or a modification or amendment of, any other term or condition of
the Credit Agreement or (ii) to prejudice any right or rights which the Agent or
Lenders may now have or may have in the future under or in connection with the
Credit Agreement or the Loan Documents or any of the instruments or agreements
referred to therein, as the same may be amended or modified from time to time.
(c) Costs and Expenses. The Borrowers hereby jointly and severally
agree to pay or reimburse the Agent for all of its reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement including, without limitation, the
reasonable fees and disbursements of counsel.
(d) Counterparts. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(e) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
(g) Approval by Required Lenders. By their execution hereof, the
Required Lenders evidence their consent to the transactions contemplated hereby
including without limitation (i) the creation of the Company as a Wholly-Owned
Subsidiary of Cornerstone, (ii) Cornerstone's investment in the Company and
(iii) the transfer by Cornerstone to the Company of each Property currently
owned by Cornerstone and located in the State of North Carolina.
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(h) Revised Schedule 1.1(a) to Credit Agreement. The parties hereto
acknowledge the attached Schedule 1.1(a) to the Credit Agreement, revised to
reflect the merger of Signet Bank with and into First Union National Bank and
the combined Commitments of such Lenders.
(i) Fax Transmission. A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF the undersigned hereby causes this Agreement to be
executed and delivered as of the date first above written.
BORROWERS:
[CORPORATE SEAL] CORNERSTONE REALTY INCOME TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Title: Vice President and CFO
--------------------------------------
[CORPORATE SEAL] CRIT-NC, LLC
By: CORNERSTONE REALTY INCOME TRUST, INC., its
sole Member/Manager
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Title: Vice President and CFO
-------------------------------------
AGENT:
FIRST UNION NATIONAL BANK, as Agent
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------
Title: VP
---------------------------
LENDERS:
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------
Title: VP
-------------------------------
AMSOUTH BANK
By: /s/ Xxxxxx X. Xxxxxxx, III
-------------------------------
Name: Xxxxxx X. Xxxxxxx, III
-------------------------------
Title: Vice President
-------------------------------
CRESTAR BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-------------------------------
Title: Senior Vice President
-------------------------------
FLEET NATIONAL BANK
By: /s/ Xxxxx X. XxXxxxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: Division Manager/Vice President
---------------------------------
Schedule 1.1(a): LENDERS AND COMMITMENTS
COMMITMENT
AND COMMITMENT
LENDER PERCENTAGE
First Union National Bank $65,000,000
Xxx Xxxxx Xxxxx Xxxxxx, XX-0 37.14%
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
AmSouth Bank $35,000,000
0000 0xx Xxxxxx Xxxxx 20.00%
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Crestar Bank $25,000,000
000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx 14.29%
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Fleet National Bank $20,000,000
000 Xxxxxxxxxxx Xxxxxx, XX MO215 11.43%
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxx XxXxxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Guaranty Federal Bank, F.S.B. $30,000,000
0000 Xxxxxxx Xxxxxx, Xxxxx 0000 17.14%
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
SCHEDULE 1.1(b)
TO
CREDIT AGREEMENT
REFINANCED DEBT
None.
SCHEDULE 6.1(a)
TO
CREDIT AGREEMENT
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
The Company is organized and authorized to do business in Virginia and has
submitted an application to transact business as a foreign limited liability
company in North Carolina.
There are no Subsidiaries of the Company.
SCHEDULE 6.1(b)
TO
CREDIT AGREEMENT
SUBSIDIARIES AND CAPITALIZATION
There are no Subsidiaries of the Company.
The following describes the capitalization of the Company as of the date of
the Agreement:
AUTHORIZED OWNERSHIP OF LLC
CLASS OF MEMBERSHIP
INTEREST INTEREST
LLC Membership Interest 100% owned by
Cornerstone Realty
Income Trust, Inc.
SCHEDULE 6.1(i)
TO
CREDIT AGREEMENT
ERISA PLANS
None.
SCHEDULE 6.1(m)
TO
CREDIT AGREEMENT
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
None.
SCHEDULE 6.1(r)
TO
CREDIT AGREEMENT
DEBT AND CONTINGENT OBLIGATIONS
None.
SCHEDULE 6.1(s)
TO
CREDIT AGREEMENT
LITIGATION
None.
SCHEDULE 10.3
TO
CREDIT AGREEMENT
EXISTING LIENS
None.
SCHEDULE 10.4
TO
CREDIT AGREEMENT
EXISTING LOANS, ADVANCES AND INVESTMENTS
None.
