Exhibit 4.23-C
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of October
17, 2002 by and among CORNERSTONE REALTY INCOME TRUST, INC., a Virginia
corporation ("Cornerstone"), CRIT-NC, LLC, a Virginia limited liability company
("CRIT-NC" and, together with Cornerstone, the "Companies" and each a
"Company"), WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as First Union
National Bank) (the "Lender") and WACHOVIA BANK, NATIONAL ASSOCIATION (formerly
known as First Union National Bank), as administrative agent for the Lender (in
such capacity, the "Administrative Agent").
STATEMENT OF PURPOSE
WHEREAS, the Companies, the Lender and the Administrative Agent are parties
to a Credit Agreement dated as of December 12, 2000 and a First Amendment to and
Waiver of Credit Agreement dated as of April 18, 2001 (as so amended, the
"Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as more
specifically provided herein; and
WHEREAS, subject to and upon the terms and conditions herein set forth, the
Lender and the Administrative Agent are willing to continue to make available to
the Companies the credit facilities provided for in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties hereto, the parties hereto hereby agree as
follows:
1. All capitalized terms used herein and not otherwise defined shall have
the respective meanings provided to such terms in the Credit Agreement, as
amended hereby.
2. Amendments to the Credit Agreement.
a. The definition of the term "Maturity Date" contained in Section 1.1
of the Credit Agreement is hereby deleted in its entirety and the following
definition is hereby substituted in lieu thereof:
"'Maturity Date' means March 31, 2003."
b. The definition of the term "Aggregate Commitment" contained in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the
following definition is hereby substituted in lieu thereof:
"'Aggregate Commitment' means the aggregate amount of the Lenders
Commitments hereunder, as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof. From and after
October 17, 2002, the Aggregate Commitment shall mean $55,000,000."
c. The definition of the term "Permanent Commitment" contained in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the
following definition is hereby substituted in lieu thereof:
"'Permanent Commitment' means $55,000,000."
d. The definition of the term "Total Implied Capitalization Value"
contained in Section 1.1 of the Credit Agreement is hereby deleted in its
entirety and the following definition is hereby substituted in lieu thereof:
"'Total Implied Capitalization Value' means, with respect to the
Borrowers and their Subsidiaries for any fiscal quarter, an amount equal to (a)
the EBITDA of the Borrowers and their Subsidiaries for such period (calculated
on an Annualized basis) less the Unit Capital Expense Charge for such fiscal
quarter divided by (b) nine and one-half percent (9.50%) plus the sum of (c)
$126,000,000 and (d) as of the last day of the fiscal quarter, cash proceeds
held by Borrowers and their Subsidiaries resulting from the sale of any
Properties; provided that for the purposes hereof, EBITDA shall be calculated on
a pro forma basis (based upon Cornerstone's best good faith estimate as to the
applicable fiscal quarter and in form and substance satisfactory to the
Administrative Agent) to include, as of the first day of such period, all
Properties acquired during such period and to exclude, as of the first day of
such period, all Properties sold during such period. However, for the purposes
hereof EBITDA shall be calculated to exclude all Properties described on
Schedule 1.1(b)."
e. Section 9.1 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"SECTION 9.1 Leverage Ratio. As of any fiscal quarter end, permit the
ratio of (a) Total Funded Debt as of such date to (b) Total Implied
Capitalization Value for such fiscal quarter to exceed 0.70 to 1.0."
f. Section 9.4 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"SECTION 9.4 Ratios of Total Secured Debt to Total Implied
Capitalization Value. As of any fiscal quarter end, permit the ratio of (a)
Total Secured Debt as of such date to (b) Total Implied Capitalization Value for
such fiscal quarter to exceed 0.65 to 1.0; provided that any secured debt by the
Borrower and Guarantors is recourse only to the specific assets provided as
collateral."
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g. Section 9.5 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"SECTION 9.5 Ratio of Adjusted Unencumbered Asset Value to Total
Unsecured Debt. As of any fiscal quarter end, permit the ratio of (a) the
Adjusted Unencumbered Asset Value for such fiscal quarter to (b) Total Unsecured
Debt as of such date to be less than 2.75 to 1.0."
h. Section 9.6 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"SECTION 9.6 Adjusted Unencumbered Asset Cash Flow Ratio. As of any
fiscal quarter end, or as of the date of any Loan made hereunder, permit the
ratio of (a) the Adjusted Unencumbered Asset Cash Flow as of such fiscal quarter
end to (b) Proforma Debt Service for such period to be less than 3.00 to 1.0."
i. Section 9.9 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is hereby substituted in lieu thereof:
"SECTION 9.9 Ratio of Dividends to Funds from Operations. As of any
fiscal quarter end, permit the ratio of (a) Dividends paid during the period of
four (4) consecutive fiscal quarters as of such fiscal quarter end to (b) Funds
from Operations for such period of four (4) consecutive fiscal quarters to
exceed 1.10 to 1.0."
j. Schedule 1.1(b) attached as Annex I is hereby added to the Credit
Agreement.
3. This Amendment shall become effective as of the date hereof,
provided that the Administrative Agent shall have received by such date the
following items:
a. A copy of this Amendment executed by the Companies, the Lender
and the Administrative Agent (whether such parties shall have signed
the same or different copies);
b. An amended and restated Note of even date herewith in form and
substance satisfactory to the Administrative Agent, made by the
Companies payable to the order of the Lender;
c. Certificates of even date herewith signed by an authorized
officer of each of the Companies and attested to by an authorized
officer of each of the Companies certifying that (i) the
organizational documents and resolutions of such Company previously
delivered to the Administrative Agent remain in full force and effect
except as provided therein, (ii) such Company remains in good
standing, (iii) all representations and warranties of such Company
previously made to the Administrative Agent and the Lender remain
true, complete and accurate, and (iv) no Event of Default or Default
has occurred and is continuing (other than such Events of Default as
may have been waived hereby);
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d. Resolutions of each of the Companies authorizing the execution
of this Amendment and the Note referred to in subsection b. above; and
e. An opinion of counsel to the Companies acceptable to the
Lender (the "Opinion"). Notwithstanding the foregoing, the Companies
may deliver the Opinion to Administrative Agent as a post-closing item
no later than the date which is fifteen (15) days after the date of
this Amendment (the "Opinion Deadline"). The failure by the Companies
to deliver the Opinion to Administrative Agent on or before the
Opinion Deadline shall be an Event of Default.
4. This Amendment is limited and, except as set forth herein, shall
not constitute a modification, acceptance or waiver of any other provision of
the Credit Agreement, or any other document or instrument entered into in
connection therewith.
5. This Amendment may be executed in any number of counterparts by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which together
shall constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Companies and the Administrative Agent.
6. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the laws of the
State of North Carolina.
7. From and after the date hereof, all references in the Credit
Agreement, and any other document or instrument entered into in connection
therewith, to the Credit Agreement shall be deemed to be references to the
Credit Agreement as amended hereby.
8. EACH OF THE LENDER, THE ADMINISTRATIVE AGENT AND EACH OF THE
COMPANIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT AND ANY AGREEMENT, DOCUMENT OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE LENDER AND THE ADMINISTRATIVE AGENT TO ENTER INTO THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and sealed as of the day and year first above written.
CORNERSTONE REALTY INCOME TRUST,
INC., a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
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Title: Executive Vice President and Chief Financial
Officer
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CRIT-NC, LLC,
a Virginia limited liability company
By: CORNERSTONE REALTY INCOME
TRUST, INC., a Virginia corporation,
its sole Member/Manager
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------------------------
Title: Executive Vice President and Chief Financial
Officer
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WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as Administrative Agent and
as sole Lender
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Managing Director
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ANNEX I
SCHEDULE 1.1(b)
TO
CREDIT AGREEMENT
DATED AS OF DECEMBER 12, 2000
BY AND AMONG CORNERSTONE REALTY INCOME TRUST, INC., CRIT-NC, LLC,
WACHOVIA BANK, NATIONAL ASSOCIATION AS ADMINISTRATIVE
AGENT AND THE LENDERS PARTY THERETO
PROPERTIES WHOSE EBITDA IS NOT INCLUDED IN CALCULATION OF
"TOTAL IMPLIED CAPITALIZATION VALUE"
1. Autumn Park, Greensboro, NC
2. Legacy Xxxx, Xxxxxxxxx, NC
3. Xx. Xxxxxxx, Xxxxxxxxxx, XX
4. Timber Crest, Charlotte, NC
5. Trinity Commons, Raleigh, NC
