EX-4.23.D 6 dex423d.txt EXHIBIT 4.23D Exhibit 4.23-D THIRD AMENDMENT TO CREDIT AGREEMENT THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of December 2nd, 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, a First Amendment to and Waiver of Credit Agreement dated as of April 18, 2001 and a Second Amendment to Credit Agreement dated as of October 17, 2002 (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 "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 December 2nd, 2002, the Aggregate Commitment shall mean $75,000,000." b. 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 $75,000,000." c. 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 0.75 to 1.0." d. 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 2.20 to 1.0." 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); d. Resolutions of each of the Companies authorizing the execution of this Amendment and the Note referred to in subsection b. above; 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; and f. A fee to fund the acquisition of Windsor Heights and Enclave at South Tryon by wire transfer or other immediately available funds, in the amount of $25,000. 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. [THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY] 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/ Stanley J. Olander, Jr. ------------------------------------------ Name: Stanley J. Olander, Jr. ---------------------------------------- Title: Executive Vice President --------------------------------------- CRIT-NC, LLC, a Virginia limited liability company By: CORNERSTONE REALTY INCOME TRUST, INC., a Virginia corporation, its sole Member/Manager By: /s/ Stanley J. Olander, Jr. --------------------------------- Name: Stanley J. Olander, Jr. ------------------------------- Title: Executive Vice Presidenet ------------------------------ WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent and as sole Lender By: /s/ David Hoagland ------------------------------------------ Name: David Hoagland ---------------------------------------- Title: Vice President ---------------------------------------