Exhibit 10.1
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 25, 2001
by and among
GOLF TRUST OF AMERICA, L.P.,
as Borrower,
the Guarantors referred to in this Agreement,
the Lenders referred to in this Agreement,
BANK OF AMERICA, N.A.
as Administrative Agent,
and
FIRST UNION NATIONAL BANK,
As Syndication Agent
and
FLEET NATIONAL BANK
As Documentation Agent
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TABLE OF CONTENTS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT.................................1
ARTICLE I DEFINITIONS.......................................................4
SECTION 1.1 Definitions...................................................4
SECTION 1.2 General......................................................15
SECTION 1.3 Other Definitions and Provisions.............................15
ARTICLE II CREDIT FACILITY.................................................15
SECTION 2.1 Acknowledgments..............................................15
SECTION 2.2 Repayment of Loans...........................................16
SECTION 2.3 Notes........................................................17
SECTION 2.4 Certain Expenses.............................................17
SECTION 2.5 Interest Escrow Account......................................17
SECTION 2.6 Collateralization; Grant of Security Interest................17
ARTICLE III GENERAL LOAN PROVISIONS........................................18
SECTION 3.1 Interest.....................................................18
SECTION 3.2 Fees.........................................................19
SECTION 3.3 Payment......................................................19
SECTION 3.4 Right of Set-off; Adjustments................................20
SECTION 3.5 Reduced Return...............................................21
SECTION 3.6 Taxes........................................................21
SECTION 3.7 REIT Status..................................................23
ARTICLE IV GUARANTY........................................................23
SECTION 4.1 Guaranty of Obligations of the Guarantors....................23
SECTION 4.2 Nature of Guaranty...........................................24
SECTION 4.3 Demand by the Administrative Agent...........................25
SECTION 4.4 Waivers......................................................25
SECTION 4.5 Benefits of Guaranty.........................................25
SECTION 4.6 Modification of Loan Documents etc...........................25
SECTION 4.7 Reinstatement................................................26
SECTION 4.8 Waiver of Subrogation and Contribution.......................27
SECTION 4.9 Remedies.....................................................27
SECTION 4.10 Limit of Liability............................................27
ARTICLE V CLOSING; CONDITIONS PRECEDENT....................................27
SECTION 5.1 Closing......................................................27
SECTION 5.2 Conditions Precedent.........................................27
ARTICLE VI REPRESENTATIONS AND WARRANTIES..................................30
SECTION 6.1 Representations and Warranties...............................30
SECTION 6.2 Survival of Representations and Warranties, Etc..............36
ARTICLE VII FINANCIAL INFORMATION AND NOTICES..............................36
SECTION 7.1 Reports and Financial Statements.............................36
SECTION 7.2 Officer's Compliance Certificate.............................37
SECTION 7.3 Accountants' Certificate.....................................37
SECTION 7.4 Other Reports................................................38
SECTION 7.5 Notice of Litigation and Other Matters.......................38
SECTION 7.6 Accuracy of Information......................................39
ARTICLE VIII AFFIRMATIVE COVENANTS.........................................40
SECTION 8.1 Preservation of Existence and Related Matters................40
SECTION 8.2 Maintenance of Property......................................40
SECTION 8.3 Insurance....................................................40
SECTION 8.4 Accounting Methods and Financial Records.....................41
SECTION 8.5 Payment and Performance of Obligations.......................41
SECTION 8.6 Compliance With Laws and Approvals...........................42
SECTION 8.7 Environmental Laws...........................................42
SECTION 8.8 Compliance with ERISA........................................42
SECTION 8.9 Compliance With Agreements...................................42
SECTION 8.10 Visits and Inspections........................................43
SECTION 8.11 Further Assurances............................................43
SECTION 8.12 LOI's, PSA's and Environmental Assessment Reports.............43
SECTION 8.13 Additional Perfection Documentation...........................43
ARTICLE IX FINANCIAL COVENANTS.............................................43
SECTION 9.1 Operating Income.............................................43
ARTICLE X NEGATIVE COVENANTS...............................................44
SECTION 10.1 Limitations on Debt...........................................44
SECTION 10.2 Limitations on Contingent Obligations.........................44
SECTION 10.3 Limitations on Liens..........................................45
SECTION 10.4 Limitations on Loans, Advances, Investments and Acquisitions..46
SECTION 10.5 Limitations on Mergers and Liquidation........................47
SECTION 10.6 Limitations on Sale of Assets.................................47
SECTION 10.7 Limitations on Dividends and Distributions....................47
SECTION 10.8 Transactions with Affiliates..................................48
SECTION 10.9 Certain Accounting Changes....................................48
SECTION 10.10 Restrictions on Prepayments...................................48
SECTION 10.11 Amendments....................................................48
ARTICLE XI DEFAULT AND REMEDIES............................................49
SECTION 11.1 Events of Default.............................................49
SECTION 11.2 Remedies......................................................52
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc...............52
ARTICLE XII THE ADMINISTRATIVE AGENT.......................................52
SECTION 12.1 Appointment, Powers, and Immunities...........................52
SECTION 12.2 Reliance by Agent.............................................53
SECTION 12.3 Defaults......................................................54
SECTION 12.4 Rights as Lender..............................................54
SECTION 12.5 Indemnification...............................................54
SECTION 12.6 Non-Reliance on Agent and Other Lenders.......................55
SECTION 12.7 Resignation; Removal of Agent; Successor Agents...............55
SECTION 12.8 Documentation Agent and Syndication Agent.....................56
ARTICLE XIII MISCELLANEOUS.................................................56
SECTION 13.1 Notices.......................................................56
SECTION 13.2 Expenses; Indemnification.....................................57
SECTION 13.3 Set-off.......................................................59
SECTION 13.4 Governing Law.................................................59
SECTION 13.5 Consent to Jurisdiction.......................................59
SECTION 13.6 Waiver of Jury Trial..........................................59
SECTION 13.7 Reversal of Payments..........................................60
SECTION 13.8 Injunctive Relief; Punitive Damages...........................60
SECTION 13.9 Accounting Matters............................................60
SECTION 13.10 Assignments and Participations................................61
SECTION 13.11 Amendments and Waivers........................................62
SECTION 13.12 Performance of Duties.........................................63
SECTION 13.13 All Powers Coupled with Interest..............................63
SECTION 13.14 Survival of Indemnities.......................................63
SECTION 13.15 Titles and Captions...........................................63
SECTION 13.16 Severability of Provisions....................................63
SECTION 13.17 Counterparts..................................................63
SECTION 13.18 Release.......................................................63
SECTION 13.19 Covenant Not to Xxx by Credit Parties.........................64
SECTION 13.20 Amendment and Restatement.....................................64
SECTION 13.21 Dismissal of State Court Litigation...........................65
SECTION 13.22 No Personal Liability.........................................65
SECTION 13.23 Reviewed by Attorneys.........................................65
SECTION 13.24 Authorization to File Financing Statements; Power of Attorney.65
EXHIBITS
A - Form of Officer's Compliance Certificate
B - Form of Assignment and Acceptance
SCHEDULES
1 - Lenders and Outstanding Loans
2 - Summary of Disposition of Assets
2.1(a) - Accrued Fees and Costs to be Paid from Proceeds
2.5 - Interest Escrow Account Disbursement Events
5.2(e) - Payments at Closing
6.1(a) - Jurisdictions
6.1(b) - Subsidiaries
6.1(g) - Environmental Disclosure
6.1(h) - Employee Benefit Plans
6.1(k) - Material Contracts
6.1(l) - Off-Balance Sheet Obligations
6.1(p) - Debt and Contingent Obligations
6.1(q) - Litigation
6.1(t) - Current and Anticipated Lessee Defaults
9.1 - Excluded Participating Leases and Innisbrook Assets
10.1(b) - Debt of Credit Parties
10.4(b) - Existing Loans to Officers of GTA
10.11 - Certain Permitted Amendments
11.1(f) - Excluded Debt
11.1(g) - Excluded Material Contracts and Participating Lease
11.1(o) - Excluded Judgments, Attachments, Garnishments, etc.
11.1(p) - Excluded Writs and Writs of Execution
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of the 25th day
of July, 2001, by and among (i) GOLF TRUST OF AMERICA, L.P., a limited
partnership formed under the laws of Delaware (the "Borrower"), (ii) the
Guarantors who are or may become a party to this Agreement, (iii) the Lenders
who are or may become a party to this Agreement, (iv) BANK OF AMERICA, N.A.
("Bank of America"), as Administrative Agent for the Lenders, (v) FIRST UNION
NATIONAL BANK, as Syndication Agent and (vi) FLEET NATIONAL BANK, as
Documentation Agent.
STATEMENT OF PURPOSE
Pursuant to an Amended and Restated
Credit Agreement, dated as of March
31, 1999 (as amended and restated, the "Original
Credit Agreement"), among
the Borrower, the Guarantors, the Lenders party thereto (collectively, the
"Original Lenders") and Bank of America (successor by merger to NationsBank,
N.A.), as Administrative Agent, First Union National Bank as Syndication
Agent and Fleet National Bank (successor by merger to BankBoston, N.A.), as
Documentation Agent, the Original Lenders extended certain credit facilities
to the Borrower.
Pursuant to a
Credit Agreement (the "Bridge Loan Agreement") dated as
of March 31, 1999 between the Borrower, the Guarantors and Bank of America,
N.A. (successor by merger to NationsBank, N.A.), as Lender (the "Bridge
Lender"), the Bridge Lender made certain loans (herein "the Bridge Loans") to
the Borrower.
The Bridge Loan Agreement matured on March 31, 2001, and the Bridge
Loans are now due and payable. Further, on May 22, 2001, the Original Lenders
accelerated and demanded full and immediate payment of the indebtedness of
the Borrower under the Original
Credit Agreement and commenced the State
Court Litigation (as hereinafter defined) to enforce their rights and
remedies under the Original
Credit Agreement and the Bridge Loan Agreement.
The parties have agreed (x) to modify the Original
Credit Agreement and
the Bridge Loan Agreement (i) to merge and consolidate the Bridge Loan
Agreement and the Original Credit Agreement and to amend and restate the
merged and consolidated Bridge Loan Agreement and Original Credit Agreement
into a single agreement, (ii) to provide that all Bridge Loans outstanding on
the Closing Date shall hereafter be deemed to constitute Loans under this
Agreement, (iii) to secure payment of the Loans, (iv) to evidence the
agreement of the Lenders to waive the existing Defaults and Events of Default
under the Original Credit Agreement and the Bridge Loan Agreement; (v) to
provide for the repayment of the Loans from the proceeds of the sales of
certain assets of the Borrower and (vi) to permit the orderly
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liquidation of the Borrower, and (y) to provide for the dismissal without
prejudice of the State Court Litigation.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as the
Administrative Agent under this Agreement, and any successor thereto
appointed pursuant to Section 12.7.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"AFFILIATE" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. The term "control" means
(a) the lawful power to vote five percent (5%) or more of the securities or
other equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other lawful power to direct or
cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"AGENTS" means the collective reference to the Administrative Agent,
the Documentation Agent and the Syndication Agent.
"AGREEMENT" means this Second Amended and Restated Credit Agreement, as
amended or modified from time to time.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"APPLICABLE OFFICE" means, for each Lender, the "Office" of such Lender
(or of an Affiliate of such Lender) designated on SCHEDULE 1 of this
Agreement or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower by written notice in accordance with the terms of this
Agreement.
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"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned thereto in Section
13.10 of this Agreement.
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association, and its successors.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 0.5% for such day. Any change in the Base Rate
due to a change in the Prime Rate shall be effective on the effective date of
such change in the Prime Rate.
"BORROWER" means Golf Trust of America, L.P.
"BRIDGE LOAN AGREEMENT" has the meaning assigned thereto in the
Statement of Purpose.
"BUSINESS DAY" means for all purposes any day other than a Saturday,
Sunday or legal holiday on which banks in Charlotte,
North Carolina and New
York, New York, are open for the conduct of their commercial banking business.
"CAPITAL LEASE" means, with respect to any Person, any lease of any
property that is, in accordance with GAAP, classified and accounted for as a
capital lease on a Consolidated balance sheet of such Person.
"CLOSING DATE" means the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"COLLATERAL" means all of (a) the real property described on SCHEDULE 2
annexed hereto, all leases of all or any portion of such real property and
all fixtures and personal property appurtenant thereto, (b) the Innisbrook
Assets, (c) the other property, or interests therein, described on SCHEDULE
2, (d) the Sandpiper Note and Mortgage, (e) the Interest Escrow Account and
(f) the proceeds from the sale of any of the foregoing, including without
limitation any purchase money note payable to the seller thereof.
"CONSOLIDATED" means, when used with reference to financial statements
or financial statement items of the Credit Parties, such statements or items
on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"CONSOLIDATED FACILITY" means the credit facilities established
pursuant to the Original Credit Agreement and the Bridge Loan Agreement as
merged, consolidated and amended pursuant to this Agreement.
"CONTINGENT OBLIGATION" means, with respect to any Credit Party,
without duplication, any obligation, contingent or otherwise, of such Person
pursuant to which such Person has
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directly or indirectly guaranteed any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such first Person (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
condition or otherwise) or (b) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or in part); PROVIDED, that the term Contingent Obligation shall not include
endorsements for collection or deposit in the ordinary course of business.
"CREDIT PARTIES" means, collectively, the Borrower and the Guarantors.
"DEBT" means, with respect to the Credit Parties at any date and
without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures,
notes or other similar instruments of any such Person; (b) all obligations to
pay the deferred purchase price of property or services of any such Person,
except trade payables arising in the ordinary course of business not more
than one hundred and twenty (120) days past due; (c) all obligations of any
such Person as lessee under Capital Leases; (d) all Contingent Obligations of
any such Person; and (e) all obligations, contingent or otherwise, of any
such Person relative to the face amount of letters of credit, whether or not
drawn, and banker's acceptances issued for the account of any such Person.
"DEFAULT" means any of the events specified in Section 11.1 which, with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"DOCUMENTATION AGENT" means Fleet National Bank in its capacity as the
Documentation Agent under this Agreement.
"DOLLARS" OR "$" means, unless otherwise qualified, lawful currency of
the United States.
"ELIGIBLE ASSIGNEE" means (i) a Lender, (ii) an Affiliate of a Lender,
(iii) a financial institution, institutional lender or other entity that is
an "accredited investor" (as defined in Rule 501 under the Securities Act of
1933, as amended) having (A) total assets of at least $10,000,000,000, (B) a
long-term unsecured debt rating of at least BBB by S&P (or an equivalent
rating by another nationally recognized statistical ratings organization) and
(C) an office in the United States, and (iv) any other Person approved by the
Administrative Agent, such approval not to be unreasonably withheld or
delayed, and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 13.10, the
Borrower, such approval not to be unreasonably withheld or delayed and such
approval to be deemed given by the Borrower if no objection is received by
the assigning Lender and the Administrative Agent from the Borrower within
two Business Days after written notice of such proposed assignment has been
provided by the assigning Lender to the
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Borrower; PROVIDED, HOWEVER, that neither the Borrower nor an Affiliate of
the Borrower shall qualify as an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding
six years been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"ENVIRONMENTAL ASSESSMENT REPORT" means a Phase I Environmental Site
Assessment report for an owned or leased golf course property and for the
Innisbrook Assets.
"ENVIRONMENTAL LAWS" means any and all applicable federal, state and
local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials. Environmental Laws include, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section
9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section
331 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section
1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.), the Safe Drinking
Water Act (42 U.S.C. Section 300, et seq.), the Environmental Protection
Agency's regulations relating to underground storage tanks (40 C.F.R. Parts
280 and 281), and the rules and regulations promulgated under each of these
statutes, each as amended or supplemented.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time
to time.
"ERISA AFFILIATE" means any Person who, together with the Borrower, is
treated as a single employer within the meaning of Section 414(b), (c), (m)
or (o) of the Code or Section 4001(b) of ERISA.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, an amount
equal to the aggregate principal amount of all Loans made by such Lender.
"FEDERAL FUNDS RATE" means the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds as quoted by the Administrative Agent and confirmed in Federal
Reserve Board Statistical Release H.15 (519) or any successor or substitute
publication selected by the Administrative Agent. If, for any reason, such
rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the
rate at which federal funds are
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being offered for sale in the national federal funds market at 9:00 a.m.
(Charlotte, N.C. time). Rates for weekends or holidays shall be the same as
the rate for the most immediate preceding Business Day.
"FISCAL YEAR" means with respect to any Credit Party, the fiscal year
of such Credit Party ending on December 31.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a
consistent basis for the Credit Parties throughout the period indicated and
consistent with the prior financial practice of the Credit Parties.
"GOVERNMENTAL APPROVALS" means all required authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any applicable nation, province, state
or political subdivision thereof, and any government or any Person exercising
executive, legislative, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"GROUP A COLLATERAL" means the Innisbrook Assets, the Legends Resorts
(Parkland, Heathland and Mooreland), Eagle Ridge, Sandpiper, Heritage,
Northgate, Stonehenge, Polo Trace, Tiburon, Osage National, Cypress Creek and
Tierra Del Sol golf course properties and the Sandpiper Note and Mortgage and
the Interest Escrow Account.
"GROUP B COLLATERAL" means the Sweetwater, Wekiva, Black Bear, Lost
Oaks and Bonaventure golf course properties.
"GTA" means Golf Trust of America, Inc., a Maryland corporation.
"GTA GP" means GTA GP, Inc., a Maryland corporation.
"GTA LP" means GTA LP, Inc., a Maryland corporation.
"GUARANTEED OBLIGATIONS" has the meaning assigned thereto in Section
4.1.
"GUARANTORS" means, collectively, GTA, GTA GP, GTA LP, Sandpiper - Golf
Trust, LLC, GTA Tierra Del Sol, LLC, GTA Osage, LLC and each such other
person executing this Agreement as a Guarantor, as set forth on the signature
pages hereto.
"GUARANTY" means the Guarantors' obligations set forth in Article IV.
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"HAZARDOUS MATERIALS" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
applicable Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
harmful to human health or the environment and are or become regulated by any
Governmental Authority with jurisdiction, (c) the presence of which require
investigation or remediation under any applicable Environmental Law or common
law, (d) the discharge or emission or release of which requires a permit or
license under any Environmental Law or other Governmental Approval, (e) which
are deemed to constitute a nuisance or a trespass or pose a health or safety
hazard to persons or neighboring properties, (f) which are materials
consisting of underground or aboveground storage tanks, whether empty, filled
or partially filled with any toxic substance, or (g) which contain, without
limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam
insulation, petroleum hydrocarbons, petroleum derived substances or waste,
crude oil, nuclear fuel, natural gas or synthetic gas, excepting, however,
any such materials lawfully operated and/or managed pursuant to applicable
Environmental Laws.
"INNISBROOK ASSETS" means all of the Borrower's right, title and
interest in and to: (a) the Promissory Note, dated June 20, 1997, made by
Golf Host Resorts, Inc. ("Golf Host") in favor of the Borrower (the
"Innisbrook Note"); (b) the Loan Agreement, dated June 20, 1997, between Golf
Host and the Borrower, as amended by that certain First Amendment dated as of
October 1, 1998 (the "Innisbrook Loan Agreement"); (c) the Mortgage, Security
Agreement and Fixture Filing, dated as of June 20, 1997, between Golf Host
and the Borrower (the "Innisbrook Mortgage"); and (d) each other document
executed in connection with the transactions contemplated by the Innisbrook
Loan Agreement, all as they have been amended, restated, supplemented or
modified before the date hereof and as they may be further amended, restated,
supplemented or modified from time to time after the date hereof in
accordance with Section 10.11.
"INNISBROOK OWNER" has the meaning assigned thereto in Section 8.3(b).
"INTEREST ESCROW ACCOUNT" has the meaning assigned thereto in Section
2.5.
"XXXXX XXXXX" means Xxxxx X. Xxxxx, an individual citizen and resident
of Myrtle Beach, Horry County, South Carolina, and entities owned by or
controlled by him, including without limitation Legends Golf Holdings, LLC.
"LEGENDS AGREEMENT" means that certain Purchase and Sale Agreement
entered into between Legends Golf Holdings, LLC, as Buyer, and Golf Trust of
America, L.P., as Seller, dated as of February 14, 2001, as such agreement
may be amended, restated, supplemented or modified from time to time after
the date hereof in accordance with Section 10.11.
"LEGENDS PROPERTIES" means the Legends Resorts (Parkland, Heathland and
Moorland), Heritage, Oyster Bay, Bonaventure (if purchased by Xxxxx Xxxxx as
part of the Legends Transaction) and Tiburon golf course properties.
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"LEGENDS TRANSACTION" means the sale transaction contemplated by the
Legends Agreement of the Legends Properties to Xxxxx Xxxxx for a purchase
price of approximately $102,000,000, payable by a credit for redemption of OP
Units and GTA common stock owned by Xxxxx Xxxxx at a nominal price of
approximately $44,700,000 and producing Net Cash Proceeds of not less than
$56,000,000; provided, however, if Bonaventure is not purchased by Xxxxx
Xxxxx, the purchase price for the Legends Properties will be approximately
$89,400,000 and will produce Net Cash Proceeds of not less than $43,700,000.
"LENDER" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10.
"LESSEE" means the operator of a golf course property under a
Participating Lease.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"LOANS" means all loans made to the Borrower pursuant to the Bridge
Loan Agreement and the Original Credit Agreement and consolidated in the
Consolidated Facility.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes and the
Perfection Documentation, all as they may be amended, restated or otherwise
modified.
"LOI" means a letter of intent with respect to the sale or other
disposition of any golf course property, the Innisbrook Assets or the
Sandpiper Note and Mortgage, which letter of intent has been executed by both
the seller and the prospective buyer.
"MANDATORY QUARTERLY PREPAYMENT" has the meaning assigned thereto in
Section 2.2(b).
"MANDATORY PROCEEDS PREPAYMENT" has the meaning assigned thereto in
Section 2.2(b).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
properties, business, operations or condition (financial or otherwise) of the
Credit Parties, taken as a whole, or the ability of any of the Credit Parties
to perform its material obligations under the Loan Documents, after the
applicable notice and cure periods, if any, have elapsed.
"MATERIAL CONTRACT" means (a) any non-cancellable contract or other
agreement, written or oral, of any Credit Party involving monetary liability
of or to any such Person in an amount in excess of $1,000,000 per annum, or
(b) any other contract or agreement, written or oral, of any Credit Party the
failure to comply with which would reasonably be expected to have a Material
Adverse Effect.
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"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making,
or is accruing an obligation to make, contributions within the preceding six
years.
"NET CASH PROCEEDS" means, with respect to the sale of any golf course
property, the Innisbrook Assets or the Sandpiper Note and Mortgage, an amount
payable to the Lenders equal to the gross cash proceeds received by the
Borrower from or in respect of such sale (including payments under purchase
money promissory notes as and when received), after deducting therefrom only
(without duplication):
(i) Reasonable fees (including, without limitation, legal fees),
commissions, expenses and other customary and reasonable closing costs
paid by the Borrower to unaffiliated third parties in connection with such
sale;
(ii) Capital Expenditure Reserve balances paid to the lessee under
the participating lease with respect to the golf course property or paid
to the prospective purchaser of such lease or golf course property or
another third party;
(iii) The outstanding principal amount of, premium or penalty, if
any, and interest on any indebtedness required to be repaid under the
terms thereof as a result of such sale (other than the Consolidated
Facility);
(iv) Amounts that are reasonably estimated as of the date of such
sale to be distributable pursuant to Section 10.7(iv) (subject to the
escrow requirements thereof) within one year of the date of such sale as a
result of any gain recognized in connection with such sale, based on the
aggregate amount of gains or losses on all properties sold during the tax
year in which such sale occurs and any operating losses against which
gains may be off-set;
(v) The stated value of OP Units or GTA's common stock, if any,
redeemed in connection with such sale as and when permitted;
(vi) Break-up, termination, or similar fees paid or payable as a
result of such sale; and
(vii) Costs and fees to third parties incurred in obtaining
required appraisals of such properties; and
(viii) Financial advisor fees paid to Banc America Securities LLC
not to exceed .85% of the gross sales price of each golf course property,
or of the Innisbrook Assets up to a maximum aggregate amount of
$1,864,998, and other reasonable and customary financial adviser fees and
fees for required fairness opinions.
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"NOTES" means the separate promissory notes made by the Borrower
payable to the order of each of the Lenders in connection with the Original
Credit Agreement and the Bridge Loan Agreement, evidencing the Loans, and any
amendments, modifications and supplements thereto, any substitutes therefor,
and any replacements, restatements, renewals or extension thereof, in whole
or in part; "Note" means any of such Notes.
"OBLIGATIONS" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans
and (b) all other fees and commissions (including attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrower to the Lenders or the Agents, of
every kind, nature and description, direct or indirect, absolute or
contingent, due or to become due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note, and whether or not
for the payment of money under or in respect of this Agreement, any Note or
any of the other Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" has the meaning assigned thereto in
Section 7.2.
"OP UNITS" means common and preferred units of limited partnership
interests in Borrower.
"ORIGINAL CREDIT AGREEMENT" has the meaning assigned thereto in the
Statement of Purpose.
"OTHER TAXES" has the meaning assigned thereto in Section 3.6(b).
"PARTICIPATING LEASE" means each lease between any Credit Party, as
lessor and the operator of a golf course property, as the lessee.
"PAYMENT DEFAULT" means any of the events specified in Section 11.1(a)
or (b), including default by any Credit Party in the performance of any
covenant or agreement contained in Section 2.2(a) or (b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA
or Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding
six years been maintained for the employees of the Borrower or any of their
current or former ERISA Affiliates.
"PERFECTION DOCUMENTATION" has the meaning assigned thereto in Section
2.6.
"PERFECTION EXPENSES" has the meaning assigned thereto in Section
5.2(e).
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"PERMITTED LIENS" means any Liens permitted under Section 10.3.
"PERSON" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate,
sole proprietorship, unincorporated organization, Governmental Authority or
any other form of entity or group thereof.
"PRIME RATE" means, at any time, the rate of interest per annum
publicly announced from time to time by Bank of America as its prime rate.
Each change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties hereto
acknowledge that the rate announced publicly by Bank of America as its Prime
Rate is an index or base rate and shall not necessarily be its lowest or best
rate charged to its customers or other banks.
"PSA" means an agreement with respect to the purchase and sale or other
disposition of any golf course property, the Innisbrook Assets or the
Sandpiper Note and Mortgage.
"REGISTER" has the meaning assigned thereto in Section 13.10(b).
"REQUIRED LENDERS" means, at any date, any combination of holders of at
least sixty-six and two-thirds percent (66-2/3%) of the aggregate unpaid
principal amount of the Notes issued pursuant to the Original Credit
Agreement.
"S&P" means Standard and Poors Ratings Group.
"SANDPIPER NOTE AND MORTGAGE" means the secured promissory note dated
June 2, 1999 in the original principal amount of $4,222,867.30 made by Oly
Chadmar Sandpiper General Partnership and payable to the order of the
Borrower as successor in interest to Sandpiper GTA Development, Inc. and
secured by a Deed of Trust With Assignments of Rents dated June 2, 1999 and
recorded in June 17, 1999 in the official records of Santa Xxxxxxx County,
California.
"SOLVENT" means, as to the Credit Parties on a particular date, that
any such Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage
and is able to pay its debts as they mature, (b) owns property having a
value, both at fair valuation and at present fair saleable value, greater
than the amount required to pay its probable liabilities (including
contingencies), and (c) does not believe that it will incur debts or
liabilities beyond its ability to pay such debts or liabilities as they
mature.
"STATE COURT LITIGATION" means that civil action pending in the
Superior Court Division of the General Court of Justice for Mecklenburg
County,
North Carolina captioned "Bank of America, N.A. as Administrative
Agent v. Golf Trust of America, L.P. et al" and bearing Case Number
01-CVS-10072.
"STATED RELEASE PRICE" means, for any golf course property, the
Innisbrook Assets or the Sandpiper Note and Mortgage, the amount shown for
such property, the Innisbrook Assets or the
13
Sandpiper Note and Mortgage under the heading "With Equity Redemption/Stated
Release Price" on SCHEDULE 2 which amount shall be paid in immediately
available funds; provided, however, that the Stated Release Price for the
Legends Properties, if not sold to Xxxxx Xxxxx, or for any other golf course
property, the Innisbrook Assets or the Sandpiper Note and Mortgage sold to a
third party where no OP Units or GTA's common stock are to be repurchased or
redeemed in connection with the sale of such property, shall be the amount
shown for such property, the Innisbrook Assets or the Sandpiper Note and
Mortgage under the heading "Without Equity Redemption/Stated Release Price"
on SCHEDULE 2.
"SUBORDINATED DEBT" means all Debt of any Credit Party subordinated in
right and time of payment to the Obligations on terms satisfactory to all
Lenders.
"SUBSIDIARY" means, as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding
capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity is at the time, directly or
indirectly, owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency). Unless otherwise qualified, references
to "Subsidiary" or "Subsidiaries" in this Agreement shall refer to those of
GTA.
"SYNDICATION AGENT" means First Union National Bank, in its capacity as
the Syndication Agent under this Agreement.
"TAXES" has the meaning assigned thereto in Section 3.6(a).
"TERMINATION DATE" means the earliest of the dates referred to in
Section 2.2(a).
"TERMINATION EVENT" means: (a) a "Reportable Event" described in
Section 4043 of ERISA; or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA; or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate
a Pension Plan or the treatment of a Pension Plan amendment as a termination
under Section 4041 of ERISA; or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan
by the PBGC; or (e) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (f) the partial
or complete withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan; or (g) the imposition of a Lien pursuant to Section 412
of the Code or Section 302 of ERISA; or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Section 4241 or 4245 of ERISA; or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
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"UCC" means the Uniform Commercial Code as in effect in the state where
the relevant golf course property or the Innisbrook Assets are located or
California in the case of the Sandpiper Note and Mortgage.
"UNITED STATES" means the United States of America.
SECTION 1.2 GENERAL. Unless otherwise specified, a reference in
this Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either
the singular or plural shall include the singular and plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference in this Agreement to
"Charlotte time" shall refer to the applicable time of day in Charlotte,
North Carolina.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
when used in this Agreement, the Notes and the other Loan Documents.
(b) MISCELLANEOUS. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1 ACKNOWLEDGMENTS.
(a) ACKNOWLEDGMENT OF OBLIGATIONS. The Borrower hereby acknowledges,
confirms and agrees that as of the close of business on July 25, 2001 (i) the
Borrower is indebted to the Lenders in respect of Loans pursuant to the
Original Credit Agreement in the principal amount of $149,287,160.36 PLUS
accrued interest of $938,708.23, and (ii) the Borrower is indebted to the
Lenders in respect of Loans pursuant to the Bridge Loan Agreement in the
aggregate principal amount of $2,025,986.08 PLUS accrued interest of
$12,739.62. All such Loans, together with interest accrued and accruing
thereon, are unconditionally owing by the Borrower to the Lenders without
offset, defense or counterclaim of any kind, nature or description
whatsoever. Interest accrued through the date of this Agreement in the amount
of $951,447.85 shall be paid on the Closing Date. In addition, all fees,
costs, expenses and other charges set forth on SCHEDULE 2.1(a) are also
unconditionally owing by the Borrower to the Administrative Agent and the
Lenders without off-set, defense and counterclaim of any kind, nature or
description whatsoever and shall be paid pursuant to Section 3.3(b). The
Administrative Agent and the Lenders represent and warrant that Schedule
2.1(a) lists all fees, costs and expenses (other than interest and principal
in
15
the amounts referred to in the first sentence of this paragraph) owed under
the Original Credit Agreement or the Bridge Loan Agreement that they have
knowledge of as of the date hereof unless otherwise indicated on SCHEDULE
2.1(a). Nothing contained herein shall constitute a waiver by the
Administrative Agent or the Lenders of the right to recover any expenses
incurred by third parties acting on behalf of the Administrative Agent or
Lenders prior to the date of this Agreement in connection with the
enforcement by the Lenders of their rights and remedies under the Original
Credit Agreement or the Bridge Loan Agreement, nor shall anything herein be
deemed an acknowledgment by the Borrower that any such expenses not
identified on SCHEDULE 2.1(a) are unconditionally owing.
(b) NO NEW BORROWINGS. No additional Loans shall be made and amounts
repaid may not be reborrowed.
SECTION 2.2 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. The Borrower shall repay the
outstanding principal amount of all Loans in full, together with all accrued
but unpaid interest thereon, on the earlier of (a) June 30, 2002, and (b) the
date on which the Administrative Agent, on behalf of the Lenders, declares
the Loans and Notes to be due and payable in full pursuant to Section 11.2(a).
(b) MANDATORY PREPAYMENTS. The principal of the Loans shall be prepaid
in the minimum cumulative amount of $10,000,000 during each quarter,
commencing with the quarter ending September 30, 2001 (the "Mandatory
Quarterly Prepayments"). In addition, as required by Section 10.6 but subject
to Sections 2.4 and 2.5, the Borrower shall prepay the Obligations in
immediately available funds by an amount equal to the greater of (x) 100% of
the Net Cash Proceeds from the sale of (i) any golf course property, (ii) the
Innisbrook Assets or (iii) the Sandpiper Note and Mortgage and (y) the Stated
Release Price for such property (the "Mandatory Proceeds Prepayment"),
without regard for whether the Mandatory Quarterly Prepayments have been
made; provided that Net Cash Proceeds received from payments under any
purchase money notes must be applied to the repayment of the Obligations only
when such payments are received. All Mandatory Proceeds Prepayments shall be
applied to the Mandatory Quarterly Prepayments provided for in the first
sentence of this Section 2.2(b). If any portion of the purchase price for a
golf course property, the Innisbrook Assets or the Sandpiper Note and
Mortgage is payable pursuant to the terms of a purchase money note,
possession of such purchase money note shall be delivered to and held by the
Administrative Agent in order to perfect the Administrative Agent's
continuing security interest therein, and all payments received on such
purchase money note by the Credit Parties shall be delivered to the
Administrative Agent as and when received and such payments shall be applied
to the prepayment of the Loans.
(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from time
to time repay the Loans, in whole or in part.
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SECTION 2.3 NOTES. Each Lender's Loans and the obligation of the
Borrower to repay such Loans shall be evidenced by the Note executed by the
Borrower payable to the order of such Lender representing the Borrower's
obligation to pay all Loans made by such Lender to the Borrower under the
Original Credit Agreement and the Bridge Loan Agreement, PLUS interest and
all other fees, charges and other amounts due thereon as required under this
Agreement. Each Note shall bear interest on the unpaid principal amount
thereof at the applicable interest rate per annum specified in Section 3.1.
SECTION 2.4 CERTAIN EXPENSES. The initial $5,000,000 of Net Cash
Proceeds realized by the Borrower after the date hereof from the sale of golf
course properties, the Innisbrook Assets or the Sandpiper Note and Mortgage
may be retained by the Borrower to fund certain expenses incurred by the
Borrower in the sale or other disposition of its assets, litigation expenses,
recording fees and taxes, legal fees and dividends payable for the second
quarter of Fiscal Year 2001, which dividends shall not exceed $3,626,006.
SECTION 2.5 INTEREST ESCROW ACCOUNT. Subject to Section 2.4, the
initial $1,500,000 of Net Cash Proceeds realized by the Borrower on or after
the date hereof from the sale of golf course properties, the Innisbrook
Assets or the Sandpiper Note and Mortgage shall be deposited in an
interest-bearing account to be maintained by the Administrative Agent for the
benefit of the Lenders (the "Interest Escrow Account"). The Interest Escrow
Account shall bear interest at the rate paid by the Administrative Agent to
its customers for deposits of like amounts and terms, and interest earned
thereon shall be part of the Interest Escrow Account. In the event the
Borrower provides written notice to the Administrative Agent that one or more
of the events described on SCHEDULE 2.5 has occurred and is continuing, then
during the continuance of such event, funds on deposit in the Interest Escrow
Account shall be applied by the Administrative Agent to the payment of
interest then due and payable or thereafter becoming due and payable on the
Notes. If at any time the proceeds of the Interest Escrow Account are
insufficient to pay in full the accrued and unpaid interest then due and
payable on the Notes, and the Borrower shall not have otherwise paid such
interest, an Event of Default specified in Section 11.1(b) shall be deemed to
have occurred. The Borrower hereby grants and conveys to the Administrative
Agent for the benefit of the Lenders a security interest in all funds in the
Interest Escrow Account from time to time. All funds remaining in the
Interest Escrow Account on the Termination Date shall be applied in
accordance with Section 3.3(b). At such time as all Obligations have been
paid in full, the balance of the Interest Escrow Account shall be remitted to
the Borrower. At such time prior to the Termination Date as none of the
events described on SCHEDULE 2.5 can occur, then upon written request of the
Borrower the Administrative Agent shall apply the funds on deposit in the
Interest Escrow Account to the payment of interest when such interest becomes
due and payable.
SECTION 2.6 COLLATERALIZATION; GRANT OF SECURITY INTEREST. The full
and punctual payment of the Obligations and performance of the terms and
conditions of this Agreement by the Borrower and the Guarantors shall be
secured by a Lien on, and the Borrower and Sandpiper-Golf Trust, LLC hereby
grant to the Administrative Agent for the benefit of the Lenders a security
interest and lien in, the Collateral. The Borrower shall execute such
mortgages, deeds of trust, assignments, security agreements, pledge
agreements, financing
17
statements and other documentation (collectively, "PERFECTION DOCUMENTATION")
and take such actions as shall be reasonably required to evidence and perfect
such Liens. Perfection Documentation for Group A Collateral and Group B
Collateral shall be executed and delivered as a condition precedent to the
obligation of the Lenders to close this Agreement. The Perfection
Documentation for the Group A Collateral shall be recorded promptly after the
Closing Date. The Administrative Agent shall hold the Perfection
Documentation for the Group B Collateral in escrow. The Administrative Agent
shall not record any Perfection Documentation for the Bonaventure golf course
property before the earlier of (i) the occurrence of an Event of Default, and
(ii) August 1, 2001 and shall not record it at all if the Bonaventure golf
course property has been sold and the Mandatory Proceeds Prepayment therefor
has been remitted to the Administrative Agent before that date. The
Administrative Agent shall not record any Perfection Documentation for the
balance of the Group B Collateral before the earliest of (i) the occurrence
of an Event of Default, (ii) forty-five (45) days after the Closing Date, or
(iii) August 15, 2001, and shall not record any Perfection Documentation for
any Group B Collateral that is sold and the Mandatory Proceeds Prepayment
therefor has been remitted to the Administrative Agent before the earlier of
such dates. The Borrower shall be responsible for the payment of all
recording fees and taxes payable in connection with the recordation of the
Perfection Documentation. Further, the Mandatory Proceeds Prepayment for the
Group B Collateral remitted to the Administrative Agent prior to the
recording of the Perfection Documentation therefor as herein provided shall
be reduced dollar for dollar by the amount of Perfection Expenses held by the
Administrative Agent for such property pursuant to Section 5.2(e).
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 INTEREST.
(a) INTEREST RATE. The unpaid principal balance of the Loans shall bear
interest, from and after the date of this Agreement, at a rate per annum
equal to the Base Rate PLUS 1%.
(b) DEFAULT RATE. Upon the occurrence and during the continuance of an
Event of Default, all outstanding Loans shall at the direction of the
Required Lenders bear interest at a rate per annum equal to the Prime Rate
PLUS 3%. Interest shall continue to accrue on the Notes after the filing by
or against the Borrower of any petition seeking any relief in bankruptcy or
under any act or law pertaining to insolvency or debtor relief, whether
state, federal or foreign.
(c) INTEREST PAYMENT AND COMPUTATION. Interest shall be payable in
arrears on the last Business Day of each month, commencing July 31, 2001, and
on the Termination Date. All interest rates, fees and commissions provided
under this Agreement shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed.
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(d) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest under this Agreement or under any of
the Notes charged or collected pursuant to the terms of this Agreement or
pursuant to any of the Notes exceed the highest rate permissible under any
Applicable Law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such a court
determines that the Lenders have charged or received interest under this
Agreement in excess of the highest rate permissible under Applicable Law, the
rate in effect under this Agreement shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the
Administrative Agent's option promptly refund to the Borrower any interest
received by Lenders in excess of the maximum rate permitted by Applicable Law
or shall apply such excess to the principal balance of the Obligations if
permitted by Applicable Law (in either event, the Administrative Agent shall
advise the Borrower in writing promptly of its decision). It is the intent of
this Agreement that the Borrower not pay or contract to pay, and that neither
the Administrative Agent nor any Lender receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may be paid by the Borrower under Applicable Law.
SECTION 3.2 FEES.
(a) MODIFICATION FEE. The Borrower shall pay to the Administrative
Agent, as a condition to the closing of this Agreement and for the account of
the Lenders, a non-refundable modification fee in an amount equal to (i) .25%
of (x) the Loans outstanding on the Closing Date MINUS (y) $56,000,000 PLUS
(ii) $50,000. A further modification fee shall be paid to the Administrative
Agent for the account of the Lenders on August 1, 2001 in an amount equal to
0.25% of the excess, if any, of $56,000,000 over the amount of the Mandatory
Proceeds Prepayment paid to the Administrative Agent on or before July 31,
2001, from the Legends Transaction and, if sold separately, from the sale of
the Bonaventure golf course property. On December 31, 2001, an additional
modification fee in an amount equal to 0.25% of the Loans outstanding on such
date shall be paid by the Borrower to the Administrative Agent for the
account of the Lenders. Such fees shall be distributed by the Administrative
Agent to the Lenders PRO RATA, based on the ratio of the outstanding Loans of
each Lender to the aggregate of all Loans outstanding.
(b) ADMINISTRATIVE AGENT'S AND OTHER FEES. The Borrower shall pay to
the Administrative Agent, for its account, the fees set forth in the separate
fee letter agreement executed by the Borrower and the Administrative Agent
dated December 21, 1998.
SECTION 3.3 PAYMENT.
(a) MANNER OF PAYMENT. Each payment by the Borrower on account of the
principal of or interest on the Loans or of any fee, commission or other
amounts payable to the Lenders under this Agreement or any Note shall be made
not later than 1:00 p.m. (Charlotte time) to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders (other than as
set forth below) PRO RATA, based on the ratio of the outstanding Loans of
each Lender to the aggregate of all Loans outstanding, in immediately
available funds and shall be
19
made without any set-off, counterclaim or deduction whatsoever. Any payment
received after such time but before 2:00 p.m. (Charlotte time) on such day
shall be deemed a payment on such date for the purposes of Section 11.1, but
for all other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment received after 2:00 p.m. (Charlotte
time) shall be deemed to have been made on the next succeeding Business Day
for all purposes. On the Business Day that each such payment is deemed made,
the Administrative Agent shall distribute to each Lender at its address for
notices set forth in this Agreement its PRO RATA share of such payment in
accordance with this Section 3.3 and shall wire advice of the amount of such
credit to each Lender; PROVIDED that if the Administrative Agent fails to
distribute such funds on the date on which any payment is deemed made, the
Administrative Agent shall pay interest thereon at the Federal Funds Rate
from the date such payment is received until the date such funds are
distributed by the Administrative Agent. Each payment to the Administrative
Agent of the Administrative Agent's fees or the expenses of the
Administrative Agent shall be made for the account of the Administrative
Agent.
(b) CREDITING OF PAYMENTS AND PROCEEDS. All Mandatory Quarterly
Prepayments and all Mandatory Proceeds Prepayments pursuant to Section 2.2
hereof received by the Administrative Agent and all proceeds received after
the Termination Date shall be applied (i) first, if the Termination Date
shall not have occurred, to fund the Interest Escrow Account to the extent
required to maintain a $1,500,000 balance in such account; (ii) second, to
all costs and expenses then due and payable by the Borrower under this
Agreement; (iii) third, to all indemnity obligations then due and payable by
the Borrower under this Agreement, the Original Credit Agreement or the
Bridge Loan Agreement; (iv) fourth, to all Administrative Agent's fees and
all commitment, modification and other fees and commissions then due and
payable by Borrower under this Agreement; (v) fifth, if the Termination Date
shall have occurred, to accrued and unpaid interest on the Notes; and (vi)
sixth, to the principal amount of the Notes (all such amounts to be allocated
PRO RATA in accordance with all such amounts due).
SECTION 3.4 RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any Event of
Default, each Lender (and each of its Affiliates) is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Lender (or any of its Affiliates) to or for the credit or the
account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the Note held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "Benefited Lender") shall at any time receive any
payment of
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all or part of the Loans owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that
any Lender so purchasing a participation from a Lender pursuant to this
Section 3.4 may, to the fullest extent permitted by law, exercise all of its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Person were the direct creditor of the
Borrower in the amount of such participation.
SECTION 3.5 REDUCED RETURN. If any Lender shall have determined that
the adoption after the date of this Agreement of any applicable law, rule, or
regulation regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such governmental
authority, central bank, or comparable agency, has or would have the effect
of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations under this Agreement to a level below that which such Lender or
such corporation could have achieved but for such adoption, change, request,
or directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
SECTION 3.6 TAXES.
(a) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent under this Agreement or under or in
respect of any other Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender (or its Applicable Office)
or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable under this Agreement or under
or in respect of any other Loan Document to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums
21
payable under this Section 3.6) such Lender or the Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 13.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, documentary or intangibles taxes and any other excise or
property taxes or charges or similar levies which arise from any payment
made, or any security interest, mortgage or other lien granted to or recorded
for the benefit of the Agents and the Lenders or any other Loan Document or
from the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction
on amounts payable under this Section 3.6) properly paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages of this
Agreement and on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if requested in
writing by the Borrower or the Administrative Agent (but only so long as such
Lender remains lawfully able to do so), shall provide the Borrower and the
Administrative Agent with (i) Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party which provides that such
Lender is not subject to deduction or withholding on payments made hereunder,
(ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or any
successor form prescribed by the Internal Revenue Service, and (iii) any
other form or certificate required by any taxing authority (including any
certificate required by Sections 871(h) and 881(c) of the Internal Revenue
Code), certifying to the Administrative Agent and the Borrower that such
Lender is entitled to an exemption from tax on payments pursuant to this
Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Administrative Agent with the appropriate form pursuant
to Section 3.6(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 3.6(a) or 3.6(b) with respect to Taxes imposed
by the United States; PROVIDED, HOWEVER, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required under this
Agreement, the Borrower shall take such reasonable steps as such
22
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.6, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower arising in connection with this Agreement, the agreements and
obligations of the Borrower contained in this Section 3.6 shall survive the
payment in full of the Notes.
SECTION 3.7 REIT STATUS. GTA has made an election to be treated as a
"real estate investment trust" under Sections 856 through 860 of the Code and
will not hereafter revoke such election.
ARTICLE IV
GUARANTY
SECTION 4.1 GUARANTY OF OBLIGATIONS OF THE GUARANTORS. Each of the
Guarantors hereby jointly and severally unconditionally guarantees to the
Administrative Agent for the ratable benefit of the Administrative Agent and
the Lenders, and their permissible respective successors, endorsees,
transferees and assigns, the prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of all Obligations of the
Borrower, whether primary or secondary (whether by way of endorsement or
otherwise), whether now existing or hereafter arising, whether or not from
time to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether or not recovery may be or hereafter become
barred by the statute of limitations, whether enforceable or unenforceable as
against the Borrower, whether or not discharged, stayed or otherwise affected
by any bankruptcy, insolvency or other similar law or proceeding, whether
created directly with the Administrative Agent or any Lender or acquired by
the Administrative Agent or any Lender through assignment, endorsement or
otherwise as permitted under this Agreement, whether matured or unmatured,
whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory
repayment or otherwise), in accordance with the terms of any such instruments
evidencing any such obligations, including all renewals, extensions or
modifications thereof (all Obligations of the Borrower to the Administrative
Agent or any Lender, including all of the foregoing, being hereinafter
collectively referred to as the "Guaranteed Obligations").
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SECTION 4.2 NATURE OF GUARANTY. Each Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance
and not of collection, and that its obligations under this Agreement shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement or any other Loan
Document or any other agreement, document or instrument to which the
Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement or any other
Loan Document or the waiver or consent by the Administrative Agent or any
Lender with respect to any of the provisions of this Agreement or any
other Loan Document;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or
guaranty); or
(d) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by each Guarantor that its obligations under this Guaranty
shall not be discharged until the final and indefeasible payment and
performance, in full, of the Guaranteed Obligations. Each Guarantor expressly
waives all rights it may now or in the future have under any statute
(including, without limitation,
North Carolina General Statutes Section 26-7,
ET SEQ. or similar law), or at law or in equity, or otherwise, to compel the
Administrative Agent or any Lender to proceed in respect of the Guaranteed
Obligations against the Borrower or any other party or against any security
for or other guaranty of the payment and performance of the Guaranteed
Obligations before proceeding against, or as a condition to proceeding
against, such Guarantor. Each Guarantor further expressly waives and agrees
not to assert or take advantage of any defense based upon the failure of the
Administrative Agent or any Lender to commence an action in respect of the
Guaranteed Obligations against the Borrower, any Guarantor or any other party
or any security for the payment and performance of the Guaranteed
Obligations. Each Guarantor agrees that any notice or directive given at any
time to the Administrative Agent or any Lender which is inconsistent with the
waivers in the preceding two sentences shall be null and void and may be
ignored by the Administrative Agent or Lender, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to this Guaranty
for the reason that such pleading or introduction would be at variance with
the written terms of this Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by the Loan
Documents and, but for this Guaranty and such waivers, the Administrative
Agent and Lenders would decline to enter into this Agreement.
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SECTION 4.3 DEMAND BY THE ADMINISTRATIVE AGENT. In addition to the
terms set forth in Section 4.2, and in no manner imposing any limitation on
such terms, if all or any portion of the then outstanding Guaranteed
Obligations under this Agreement are declared to be immediately due and
payable in accordance with the terms of this Agreement, then the Guarantors
shall, upon demand in writing therefor by the Administrative Agent to the
Guarantors, pay all or such portion of the outstanding Guaranteed Obligations
then declared due and payable. Payment by the Guarantors shall be made to the
Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immediately available federal funds to an account designated
by the Administrative Agent or at the address referenced in this Agreement
for the giving of notice to the Administrative Agent or at any other address
that may be specified in writing from time to time by the Administrative
Agent.
SECTION 4.4 WAIVERS. In addition to the waivers contained in Section
4.2, each Guarantor waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage
of, any appraisal, valuation, stay, extension, marshalling of assets or
redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by such
Guarantor of its obligations under, or the enforcement by the Administrative
Agent or the Lenders of, this Guaranty. Each Guarantor further hereby waives
diligence, presentment, demand, protest and notice of whatever kind or nature
with respect to any of the Guaranteed Obligations and waives the benefit of
all provisions of law which are or might be in conflict with the terms of
this Guaranty. Each Guarantor represents, warrants and agrees that its
obligations under this Guaranty are not and shall not be subject to any
counterclaims, offsets or defenses of any kind against the Administrative
Agent, the Lenders or the Borrower whether now existing or which may arise in
the future.
SECTION 4.5 BENEFITS OF GUARANTY. The provisions of this Guaranty are
for the benefit of the Administrative Agent and the Lenders and their
respective successors, transferees, endorsees and assigns, and nothing in
this Agreement contained shall impair, as between the Borrower, the
Administrative Agent and the Lenders, the obligations of the Borrower under
the Loan Documents. In the event all or any part of the Guaranteed
Obligations are transferred, endorsed or assigned by the Administrative Agent
or any Lender to any Person or Persons, any reference to any "Administrative
Agent" or "Lenders" in this Agreement shall be deemed to refer equally to
such Person or Persons.
SECTION 4.6 MODIFICATION OF LOAN DOCUMENTS ETC. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without
the consent of, or notice to, the Guarantors:
(a) change or extend the manner, place or terms of payment of,
or renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available
to it at law, in
25
equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan
Documents;
(d) extend or waive the time for performance by the Guarantors, the
Borrower or any other Person of, or compliance with, any term, covenant or
agreement (other than this Guaranty) on its part to be performed or
observed under a Loan Document, or waive such performance or compliance or
consent to a failure of, or departure from, such performance or
compliance;
(e) take and hold security or collateral for the payment of the
Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Administrative Agent or the Lenders have been granted a Lien, to
secure any Debt of any Guarantor or the Borrower to the Administrative
Agent or the Lenders;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by the Guarantors or the Borrower to the
Administrative Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of the
Guarantors or the Borrower are subordinated to the claims of the
Administrative Agent or any Lender; or
(h) apply any sums by whomever paid or however realized to any
amounts owing by the Guarantors or the Borrower to the Administrative
Agent or any Lender in such manner as the Administrative Agent or any
Lender shall determine in its discretion;
then neither the Administrative Agent nor any Lender shall incur any
liability to the Guarantors as a result thereof, and no such action shall
impair or release the obligations of the Guarantors under this Agreement.
SECTION 4.7 REINSTATEMENT. Each Guarantor agrees that if any payment
made by the Borrower or any other Person applied to the Obligations is at any
time annulled, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid by the
Administrative Agent or Lender to the Borrower, their estate, trustee,
receiver or any other party, including, without limitation, such Guarantor,
under any Applicable Law or equitable cause, then, to the extent of such
payment or repayment, such Guarantor's liability under this Agreement shall
be and remain in full force and effect, as fully as if such payment had never
been made, and, if prior thereto, this Guaranty shall have been canceled or
surrendered, this Guaranty shall be reinstated in full force and effect, and
such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of such Guarantor in respect of
the amount of such payment.
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SECTION 4.8 WAIVER OF SUBROGATION AND CONTRIBUTION. Each Guarantor
hereby irrevocably waives any claims or other rights which it may now or
hereafter acquire against the Borrower that arise from the existence or
performance of such Guarantor's obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or
remedy of the Administrative Agent or the Lenders against the Borrower
security or collateral which the Administrative Agent or the Lenders now have
or may hereafter acquire, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, by any payment made under
this Agreement or otherwise, including without limitation, the right to take
or receive from the Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account
of such claim or other rights.
SECTION 4.9 REMEDIES. Upon the occurrence of any Event of Default,
the Administrative Agent may enforce against any Guarantor its obligations
and liabilities under this Agreement and exercise such other rights and
remedies as may be available to the Administrative Agent under this
Agreement, the other Loan Documents or applicable law.
SECTION 4.10 LIMIT OF LIABILITY. The obligations of each Guarantor
under this Agreement shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations under this Agreement
subject to avoidance under Section 548 of the United States Bankruptcy Code
or any comparable provisions of any applicable state law.
ARTICLE V
CLOSING; CONDITIONS PRECEDENT
SECTION 5.1 CLOSING. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. in Charlotte,
North Carolina at
10:00 a.m. on July 25, 2001 or at such other place and on such other date as
the parties hereto shall mutually agree.
SECTION 5.2 CONDITIONS PRECEDENT. The obligation of the Lenders to
close this Agreement is subject to the satisfaction of each of the following
conditions precedent:
(a) EXECUTED LOAN DOCUMENTS. This Agreement in form and substance
satisfactory to the Administrative Agent and each Lender shall have been
duly authorized, executed and delivered by the Borrower and each other
Credit Party, as applicable, shall be in full force and effect, no Default
or Event of Default shall exist, and the Borrower and each other Credit
Party, as applicable, shall have delivered original counterparts thereof
to the Administrative Agent.
(b) EXECUTED PERFECTION DOCUMENTATION. The Borrower and each other
Credit Party, as applicable, shall have executed and delivered to the
Administrative
27
Agent Perfection Documentation for all Collateral in recordable form
satisfactory to the Administrative Agent, granting the Liens required
under this Agreement.
(c) CLOSING CERTIFICATES; ETC.
(i) CERTIFICATE OF GTA. The Administrative Agent shall have
received a certificate from the chief executive officer or chief
financial officer of GTA, in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Credit Parties contained in
this Agreement and the other Loan Documents are true, correct and
complete to the best knowledge of such Person; that to the best
knowledge of such Person none of the Credit Parties is in violation
of any of the covenants contained in this Agreement and the other
Loan Documents; that, to the best knowledge of such Person, after
giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred under this Agreement and is
continuing; and that to the best knowledge of such Person the
Borrower has satisfied each of the closing conditions.
(ii) CERTIFICATE OF SECRETARY OF THE GENERAL PARTNER. The
Administrative Agent shall have received a certificate of the
secretary or assistant secretary of GTA GP, in its capacity as the
Managing General Partner of the Borrower certifying on behalf of the
Borrower that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of GTA GP
authorizing the execution, delivery and performance of the Loan
Documents to which the Borrower is a party; and as to the incumbency
and genuineness of the signature of each officer of GTA GP executing
Loan Documents to which the Borrower is a party.
(iii) CERTIFICATE OF SECRETARY OF EACH GUARANTOR. The
Administrative Agent shall have received a certificate of the
secretary or assistant secretary of each Guarantor certifying that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Guarantor authorizing the
borrowings contemplated under this Agreement and the execution,
delivery and performance of this Agreement and the other Loan
Documents to which it is a party; and as to the incumbency and
genuineness of the signature of each officer of such Guarantor
executing Loan Documents to which it is a party.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall
have received favorable opinions of:
(A) Counsel to the Credit Parties addressed to the
Administrative Agent and the Lenders with respect to the
Credit Parties, the Loan Documents and such other matters as
the Lenders shall reasonably request; and
28
(B) Florida counsel to the Credit Parties addressed to
the Administrative Agent and the Lenders with respect to the
enforceability and perfection of the Multi-State Mortgage,
Collateral Assignment of Leases and Rents, Security Agreement
and Fixture Filing (the "Florida Mortgage") and Modification
and Spreader of the Florida Mortgage and enforceability of the
Florida Tax Indemnity Agreement.
(d) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. All necessary
approvals, authorizations and consents, if any be required, of any
Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this
Agreement and the other Loan Documents shall have been obtained.
(ii) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, or which
is related to or arises out of this Agreement or the other Loan
Documents or the consummation of the transactions contemplated
hereby or thereby, or which, in the Administrative Agent's
reasonable discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan
Documents.
(iii) NO EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing.
(e) PAYMENT AT CLOSING. There shall have been paid by the Borrower
to the Lenders the portion of the fee set forth or referenced in Section
3.2 due on the Closing Date, all interest payable on the Closing Date
pursuant to Section 2.1(a), and all recording fees, taxes, and other
charges in connection with the execution, delivery, recording, filing and
registration of the Perfection Documentation ("PERFECTION EXPENSES").
Perfection Expenses for the Group B Collateral in the amounts identified
on SCHEDULE 5.2(e) shall be held by the Administrative Agent, without
interest, and either (i) used to pay Perfection Expenses when the Group B
Collateral Perfection Documentation is recorded pursuant to Section 2.5 or
(ii) applied to any Mandatory Proceeds Prepayment received from the sale
of Group B Collateral prior to recording of the Perfection Documentation
therefor.
(f) MISCELLANEOUS.
(i) PROCEEDINGS AND DOCUMENTS. All opinions, certificates and
other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably
satisfactory in form and
29
substance to the Lenders. The Lenders shall have received copies
of all other instruments and other evidence as the Lenders may
reasonably request, in form and substance reasonably satisfactory
to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection
therewith.
(ii) DUE DILIGENCE AND OTHER DOCUMENTS. The Borrower shall
have delivered to the Administrative Agent all LOI's and PSA's in
existence as of the Closing Date and such other documents,
certificates and opinions as the Administrative Agent reasonably
requests, certified by a secretary or assistant secretary of GTA, in
its capacity as the Borrower's managing general partner, as a true
and correct copy thereof.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. The Credit Parties
hereby represent and warrant to the Agent and the Lenders that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Credit Parties
is duly organized, validly existing and, except as set forth on SCHEDULE
6.1(a), in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own its
properties and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification and authorization
and in which the failure to qualify would have a Material Adverse Effect.
The jurisdictions in which the Credit Parties are qualified to do business
are described on SCHEDULE 6.1(a).
(b) OWNERSHIP. The Subsidiaries of the Borrower are set forth on
SCHEDULE 6.1(b). GTA owns no Subsidiary other than GTA GP, GTA LP and the
Borrower. Neither GTA GP nor GTA LP owns any Subsidiary other than the
Borrower. All outstanding shares of stock of the Guarantors have been duly
authorized and validly issued and are fully paid and nonassessable.
(c) AUTHORIZATION OF AGREEMENT AND LOAN DOCUMENTS. Each of the
Credit Parties has the right, power and authority and has taken all
necessary action to authorize the execution, delivery and performance of
this Agreement and each of the other Loan Documents to which it is a party
and the transactions contemplated hereby and thereby, in each case in
accordance with their respective terms. This Agreement and each of the
other Loan Documents have been duly executed and delivered by the duly
authorized officers of each Guarantor and of the duly authorized general
partner of the Borrower, and each such document constitutes the legal,
valid and binding obligation of each of
30
the Credit Parties, to the best of its knowledge, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or
federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of
equitable remedies.
(d) COMPLIANCE OF AGREEMENT AND LOAN DOCUMENTS WITH LAWS, ETC. The
execution, delivery and performance by each of the Credit Parties of the
Loan Documents to which such Person is a party, in accordance with their
respective terms, and the transactions contemplated hereby and thereby do
not and will not, by the passage of time, the giving of notice or
otherwise, (i) require any Governmental Approval or violate any Applicable
Law relating to any Credit Party, (ii) conflict with, result in a breach
of or constitute a default under the agreement of limited partnership of
the Borrower, the articles of incorporation, bylaws or other
organizational documents of any Guarantor or any indenture, agreement or
other instrument to which any Credit Party is a party or by which any of
its properties may be bound or any Governmental Approval relating to any
Credit Party, or (iii) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by any Credit Party other than Liens arising under the Loan
Documents.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of the Credit
Parties, to the best of its knowledge, (i) has all material Governmental
Approvals required by any Applicable Law for it to conduct its business,
each of which is in full force and effect, is final and not subject to
review on appeal and is not the subject of any pending or, to the best of
its knowledge, threatened attack by direct or collateral proceeding, and
(ii) is in compliance with each Governmental Approval applicable to it and
in compliance with all other Applicable Laws relating to it or any of its
respective properties, to the extent such failure to comply would have a
Material Adverse Effect on the Credit Parties.
(f) TAX RETURNS AND PAYMENTS. Each of the Credit Parties has duly
filed (or will duly file in accordance with Applicable Laws) or caused (or
will cause in accordance with Applicable Laws) to be filed all federal,
state, local and other tax returns required by Applicable Law (including
the provisions of the Code and the regulations thereunder relating to
"real estate investment trusts") to be filed, and has paid (or will pay in
accordance with Applicable Laws), or made adequate provision for the
payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits
and assets which are due and payable. No Governmental Authority has
asserted any Lien or other claim against any Credit Party with respect to
unpaid taxes which has not been discharged or resolved. The charges,
accruals and reserves on the books of each of the Credit Parties in
respect of federal, state, local and other taxes for all Fiscal Years and
portions thereof since the organization of each Credit Party are in the
judgment of such Person adequate, and such Person does not anticipate any
additional taxes or assessments for any of such years.
31
(g) ENVIRONMENTAL MATTERS. Except for matters disclosed in the
documents listed on SCHEDULE 6.1(g):
(i) To the Borrower's knowledge, the golf course properties of
the Credit Parties do not contain, and have not previously
contained, any Hazardous Materials in amounts or concentrations
which (A) constitute or constituted a violation of, or (B) could
give rise to liability under, applicable Environmental Laws, except
as otherwise set forth in the Environmental Assessment Reports;
(ii) To the Borrower's knowledge, the golf course properties
of the Credit Parties and all operations conducted in connection
therewith are in compliance, and have been in compliance, with all
applicable Environmental Laws, and there is no contamination at,
under or about such golf course properties or such operations which
could interfere with the continued operation of such golf course
properties or impair the fair saleable value thereof, except as
otherwise set forth in the Environmental Assessment Reports;
(iii) No Credit Party has received any notice of violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental
Laws with regard to any golf course property or the operations
conducted in connection therewith, nor does any Credit Party have
knowledge or reason to believe that any such notice will be received
or is being threatened, except as otherwise set forth in the
Environmental Assessment Reports;
(iv) To the Borrower's knowledge, hazardous Materials have not
been transported or disposed of from the golf course properties of
any Credit Party in violation of, or in a manner or to a location
which could give rise to liability under, applicable Environmental
Laws, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such golf course
properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws, except as
otherwise set forth in the Environmental Assessment Reports;
(v) No judicial proceedings or governmental or administrative
action is pending of which any Credit Party has received notice, or,
to the knowledge of any Credit Party, threatened, under any
applicable Environmental Law to which any Credit Party is or will be
named as a party with respect to such golf course properties or
operations conducted in connection therewith, nor are there any
consent decrees or consent orders, nor, to the Borrower's knowledge,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any applicable Environmental
Law with respect to such golf course properties or such operations,
except as set forth in the Environmental Assessment Reports; and
32
(vi) To the Borrower's knowledge, there has been no release,
the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could
give rise to liability under applicable Environmental Laws, except
as set forth in the applicable Environmental Assessment Reports.
(h) ERISA.
(i) Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit
Plans other than those identified on SCHEDULE 6.1(h);
(ii) the Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to
all Employee Benefit Plans except for any required amendments for
which the remedial amendment period as defined in Section 401(b) of
the Code has not yet expired. Each Employee Benefit Plan that is
intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and
each trust related to such plan has been determined to be exempt
under Section 501(a) of the Code. No liability has been incurred by
the Borrower or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan or
any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the
Code) been incurred (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the
Internal Revenue Service been received or requested with respect to
any Pension Plan, nor has the Borrower or any ERISA Affiliate failed
to make any contributions or to pay any amounts due and owing as
required by Section 412 of the Code, Section 302 of ERISA or the
terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA,
nor has there been any event requiring any disclosure under Section
4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section
406 of the ERISA or Section 4975 of the Code, (B) incurred any
liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due
and unpaid, (C) failed to make a required contribution or payment to
a Multiemployer Plan, or (D) failed to make a required installment
or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to
33
occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due
inquiry, threatened concerning or involving any (A) employee welfare
benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to by the Borrower or any ERISA Affiliate,
(B) Pension Plan, or (C) Multiemployer Plan.
(i) MARGIN STOCK. The Borrower is not engaged principally or as one
of its activities in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (as each such term is
defined or used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will be used
for purchasing or carrying margin stock or for any purpose which violates,
or which would be inconsistent with, the provisions of Regulation T, U or
X of such Board of Governors.
(j) GOVERNMENT REGULATION. The Borrower is not an "investment
company" or a company "controlled" by an "investment company" (as each
such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary thereof is, or after
giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate
Commerce Act, each as amended, or any other Applicable Law which limits
its ability to incur or consummate the transactions contemplated hereby.
(k) MATERIAL CONTRACTS. SCHEDULE 6.1(k) sets forth a complete and
accurate list of all Material Contracts of the Credit Parties in effect as
of the Closing Date not listed on any other Schedule hereto; other than as
set forth in SCHEDULE 6.1(k), each such Material Contract is, and
immediately after giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, to the best of each Credit
Party's knowledge, in full force and effect in accordance with the terms
thereof. The Borrower has delivered to the Administrative Agent a true and
complete copy of each Material Contract required to be listed on
SCHEDULE 6.1(k).
(l) FINANCIAL STATEMENTS. The (i) audited Consolidated balance sheet
of the Credit Parties as of December 31, 2000 and the related statements
of income and retained earnings and cash flows for the period then ended
and (ii) unaudited Consolidated balance sheet of the Credit Parties as of
March 31, 2001 and related unaudited interim statements of revenue and
retained earnings, copies of which have been furnished to the
Administrative Agent and each Lender, are, and all financial statements
hereafter delivered to the Administrative Agent or any Lender, whether
pursuant to Article VII or otherwise, shall be, complete and correct in
all material respects and fairly present the assets, liabilities
(including, without limitation, material contingent liabilities) and
financial position of the Credit Parties as at such dates, and the results
of the operations and changes of financial position for the periods then
ended. All such financial statements, including the related schedules and
notes thereto,
34
have been, or will be, as the case may be, prepared in accordance with
GAAP. Except as set forth on SCHEDULE 6.1(l), the Credit Parties have no
Debt, obligation or other unusual forward or long-term commitment which
is not fairly reflected in the foregoing financial statements or in the
notes thereto.
(m) SOLVENCY. As of the Closing Date each of the Credit
Parties will be Solvent.
(n) TITLES TO PROPERTIES. Each Credit Party has such title to the
real property owned by it as is necessary or desirable to the conduct of
its business and valid and legal title to all of its personal property and
assets, including, but not limited to, those reflected on the Consolidated
balance sheet of the Credit Parties delivered pursuant to Section 6.1(l),
except those which have been disposed of by the Credit Parties subsequent
to such date, which dispositions have been in the ordinary course of
business or as otherwise expressly permitted under this Agreement.
(o) LIENS. None of the properties and assets of any Credit Party is
subject to any Lien, except Liens created by the Loan Documents and
Permitted Liens. No financing statement under the Uniform Commercial Code
of any state which names any Credit Party or any of its trade names or
divisions as debtor and which has not been terminated, has been filed in
any state or other jurisdiction and no Credit Party has signed any such
financing statement or any security agreement authorizing any secured
party thereunder to file any such financing statement, except to perfect
those Liens permitted by Section 10.3.
(p) DEBT AND CONTINGENT OBLIGATIONS. SCHEDULE 6.1(p) is a complete
and correct listing of all existing Debt and Contingent Obligations of the
Credit Parties. The Credit Parties have performed and are in compliance
with all of the terms of such Debt and Contingent Obligations and all
instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both
would constitute such a default or event of default on the part of any
Credit Party exists with respect to any such Debt or Contingent
Obligation, except for any failures to perform or comply, or defaults or
events of default, that would not result in a Material Adverse Effect.
(q) LITIGATION. Except as set forth on SCHEDULE 6.1(q), there are no
actions, suits or proceedings pending after service on any of the Credit
Parties nor, to the knowledge of the Credit Parties, threatened against or
in any other way relating adversely to or affecting any of the Credit
Parties or any of their properties in any court or before any arbitrator
of any kind or before or by any Governmental Authority.
(r) ACCURACY AND COMPLETENESS OF INFORMATION. No representation or
warranty of any Credit Party contained in any Loan Document or in any
other document, certificate or written statement furnished to the Lenders
by or on behalf of any Credit Party for use in connection with the
transactions contemplated by this
35
Agreement contained any statement of a material fact that was
untrue when made. No representation is made with respect to
financial projections. None of the Credit Parties is aware of any
facts (other than matters of a general economic nature) that,
individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
(s) JUDGMENTS. There are no judgments or orders for the payment
of money outstanding against any Credit Party.
(t) PARTICIPATING LEASES/INNISBROOK ASSETS/SANDPIPER NOTE. To the
knowledge of the Credit Parties, and except as set forth on
SCHEDULE 6.1(t), no monetary default, and no non-monetary default which
would have a material adverse effect on the enforcement thereof, exists
under any Participating Lease, the Innisbrook Assets or the Sandpiper Note
and Mortgage.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate executed and
delivered by any Credit Party pursuant to this Agreement, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall survive the Closing Date and
shall not be waived by the execution and delivery of this Agreement or any
investigation made by or on behalf of the Lenders.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full, unless
consent has been obtained in the manner set forth in Section 13.11, the
Credit Parties will furnish or cause to be furnished to the Lenders at their
respective addresses as set forth on SCHEDULE 1, or such other office as may
be designated by the Lenders from time to time:
SECTION 7.1 REPORTS AND FINANCIAL STATEMENTS.
(a) MONTHLY REPORTS. As soon a practicable and in any event within
thirty (30) days after the end of each month:
(i) an accounts receivable aging by lessee (under the Participating
Leases) and with respect to the Innisbrook Mortgage and a schedule of
LOI's and PSA's entered into during such month and projected closings; and
36
(ii) a compliance certificate for Section 9.1 comparing payments
received to payments due.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter, an
unaudited Consolidated balance sheet of GTA and the other Credit Parties as
of the close of such fiscal quarter and unaudited Consolidated statements of
income, retained earnings and cash flows for the fiscal quarter then ended
and that portion of the Fiscal Year then ended, including the notes thereto,
all in reasonable detail setting forth in comparative form the corresponding
figures for the preceding Fiscal Year and prepared by GTA in accordance with
GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of
accounting principles and practices during the period, and certified by the
chief financial officer of GTA to present fairly in all material respects the
financial condition of GTA and the other Credit Parties as of their
respective dates and the results of operations of GTA and the other Credit
Parties for the respective periods then ended, subject to normal year end
adjustments.
(c) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within one hundred twenty (120) days after the end of each Fiscal Year,
an audited Consolidated balance sheet of GTA and the other Credit Parties as
of the close of such Fiscal Year and audited Consolidated statements of
income, retained earnings and cash flows for the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
preceding Fiscal Year and prepared in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting
principles and practices during the year, and accompanied by a report thereon
by an independent certified public accounting firm that is not qualified with
respect to scope limitations imposed by GTA and the other Credit Parties or
any of its Subsidiaries or with respect to accounting principles followed by
GTA and the other Credit Parties not in accordance with GAAP.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE. At each time financial
statements are delivered pursuant to Section 7.1(b) or (c), a certificate of
the chief financial officer or the treasurer of GTA in the form of EXHIBIT A
attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 ACCOUNTANTS' CERTIFICATE. At each time financial
statements are delivered pursuant to Section 7.1(c), a certificate of the
Borrower's independent public accountants certifying such financial
statements addressed to the Administrative Agent for the benefit of the
Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of
any Default or Event of Default or, if such is not the case, specifying
such Default or Event of Default and its
37
nature and period of existence; and
(b) including a fully executed copy of a letter from such
accountants to GTA expressly authorizing the Lenders to rely on the
examination and report of such independent public accountants with respect
to the audited financial statements of the Credit Parties as of and for
such Fiscal Year then ending.
SECTION 7.4 OTHER REPORTS.
(a) Within thirty (30) days after transmission thereof, copies of all
financial statements, proxy statements, reports and any other general written
communications which the Borrower sends to its stockholders and copies of all
registration statements and all regular, special or periodic reports which GTA
files with the Securities and Exchange Commission (including each report made on
Form 8-K, 10-Q and 10-K) or with any securities exchange on which any of its
securities are then listed, and copies of all press releases and other
statements made available generally by GTA to the public;
(b) Within thirty (30) days after the effective date thereof, a report of
any amendment to the Innisbrook Note, the Innisbrook Loan Agreement, the
Innisbrook Mortgage or any ground lease or Participating Lease permitted by
Section 10.11, together with such other information regarding the operations,
business affairs and financial condition of the Credit Parties as the
Administrative Agent or any Lender may reasonably request; and
(c) Promptly after the end of each quarter, commencing with the quarter
ending September 30, 2001, a report identifying, as of such quarter end, the
aggregate amount of gains and losses on all properties sold during the calendar
year to such quarter end, any operating losses against which gains may be
off-set, and the amount of distributions, if any, required to maintain REIT
status or to avoid any excise taxes that would otherwise be due if such
distributions were not timely made.
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but in no
event later than thirty (30) days after an executive officer of GTA obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and material
investigations by or before any Governmental Authority and all actions and
proceedings in any court or before any arbitrator against or involving any
Credit Party or any of their respective properties, assets or businesses
exceeding $250,000;
(b) any notice of any material violation received after the date
hereof by any Credit Party from any Governmental Authority including,
without limitation, any notice relating to Environmental Laws, including
any material violation of Environmental Laws, whether occurring prior to
or subsequent to the date hereof;
(c) any material labor controversy that has resulted in, or
threatens to result in, a strike or other work action against any Credit
Party;
38
(d) any attachment, judgment, lien, levy or order exceeding $250,000
that may be assessed against or threatened against any Credit Party;
(e) (i) any Default or Event of Default, or (ii) any event which
constitutes or which with the passage of time or giving of notice or both
would constitute a default or event of default under any Material Contract
to which any Credit Party is a party or by which any Credit Party or any
of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan
under Section 401(a) of the Code (along with a copy thereof), (ii) all
written notices received by any Credit Party or any ERISA Affiliate of the
PBGC's intent to terminate any Pension Plan or to have a trustee appointed
to administer any Pension Plan, (iii) all written notices received by any
Credit Party or any ERISA Affiliate from a Multi-employer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA, and (iv) any Credit Party obtaining written notice
that any Credit Party or any ERISA Affiliate has filed or intends to file
a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA;
(g) promptly after receipt thereof, any written communication from
the Internal Revenue Service which challenges GTA's status as a "real
estate investment trust" within the meaning of Section 856 of the Code;
(h) any event which makes any of the representations set forth
in Section 6.1 inaccurate in any material respect; and
(i) any monetary default, or non-monetary default which would have a
material adverse effect on the enforcement thereof, under any
Participating Lease, the Innisbrook Assets or the Sandpiper Note and
Mortgage.
SECTION 7.6 ACCURACY OF INFORMATION. All written information,
reports, statements and other papers and data furnished by or on behalf of
any Credit Party to the Administrative Agent or any Lender (other than
financial forecasts) respecting any Credit Party whether pursuant to this
Article VII or any other provision of this Agreement, or any of the
Perfection Documentation, shall be, at the time the same is so furnished, to
such Credit Party's knowledge, complete and correct in all material respects
to the extent necessary to give the Administrative Agent or any Lender
complete, true and accurate knowledge of the subject matter based on the
Credit Party's knowledge thereof.
39
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full,
unless consent has been obtained in the manner provided for in Section 13.11,
each Credit Party will, and will cause each of its Subsidiaries to:
SECTION 8.1 PRESERVATION OF EXISTENCE AND RELATED MATTERS. Preserve
and maintain its separate corporate or partnership existence, as applicable,
and all rights, franchises, licenses and privileges necessary to the conduct
of its business, and qualify and remain qualified as a foreign corporation or
partnership and authorized to do business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect. Notwithstanding
the foregoing, the Credit Parties shall cause GTA LP, Inc. to be duly
qualified and authorized to do business in Maryland as soon as reasonably
practicable after the Closing Date and, in any event, not later than 30 days
after the Closing Date.
SECTION 8.2 MAINTENANCE OF PROPERTY. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks and service marks; maintain in good
working order and condition all buildings, equipment and other tangible real
and personal property; and from time to time make or cause to be made all
renewals, replacements and additions to such property necessary for the
conduct of its business, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 8.3 INSURANCE.
(a) Keep its insurable properties adequately insured at all times;
maintain such other insurance, to such extent and against such risks,
including fire and other risks insured against by extended coverage, as is
customary with similarly-situated companies in the same or similar businesses
and maintain such other insurance as may be required by Applicable Law, in
each case with financially sound and reputable insurers reasonably acceptable
to the Administrative Agent. To the extent reasonably practicable, the
Administrative Agent shall be named as loss payee under policies insuring
against casualty losses, and as an additional insured with respect to
liability policies.
(b) The Borrower will not amend or waive any provision in any
Participating Lease or the Innisbrook Mortgage requiring the lessee
thereunder or owner of the property that is the subject of the Innisbrook
Mortgage (the "Innisbrook Owner") to maintain insurance with respect to the
golf course property leased by such lessee or the property that is the
subject of the Innisbrook Mortgage. The Borrower will use commercially
reasonable efforts to cause such lessees and the Innisbrook Owner to comply
with any provisions in such Participating Leases or the Innisbrook Mortgage
that require such lessees or the Innisbrook Owner to have the Administrative
Agent named as loss payee under policies of insurance against loss or damage
to any golf course property covered by such insurance policies, and to have
the Administrative
40
Agent named as additional insured under any such liability insurance
policies. All proceeds received by the Administrative Agent under any such
policies of insurance against loss or damage to any golf course property
shall be promptly remitted to the Borrower to the extent necessary to enable
the Borrower to comply with any provisions in the applicable Participating
Lease or Innisbrook Mortgage that would require the Borrower to remit such
proceeds to the lessee or to repair or replace the applicable property if the
Borrower had received such proceeds. All other proceeds received by the
Administrative Agent under any such policies of insurance for loss or damage
to any golf course property shall, after deduction therefrom of all
reasonable expenses actually incurred by the Administrative Agent, including
attorneys' fees, in connection with the receipt of such proceeds, at the
Administrative Agent's option be (1) released to the Borrower, or (2) applied
(upon compliance with such terms and conditions as may be reasonably required
by the Administrative Agent) to repair or restoration, either partly or
entirely, of the property so damaged, or (3) after the occurrence and during
the continuance of an Event of Default, applied to the payment of the
Obligations in such order and manner as the Administrative Agent, in its sole
discretion, may elect, whether or not due.
(c) Deliver to the Administrative Agent a detailed schedule of the
insurance then in effect in favor of the Borrower, stating the names of the
insurance companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby, and advise
the Administrative Agent promptly in writing of any change in the insurance
coverage as shown on such schedule.
(d) To the extent the lessee under any Participating Lease or the
Innisbrook Owner fails to maintain the insurance coverage required to be
maintained under the terms of the relevant Participating Lease or the
Innisbrook Mortgage, the Borrower shall as soon as reasonably practical after
the Closing Date and, in any event, no later than 60 days after the Closing
Date, obtain insurance coverages in the amounts and in the form required by
the relevant Participating Lease or the Innisbrook Mortgage, as the case may
be.
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a
system of accounting, and keep such books, records and accounts (which shall
be true and complete in all material respects) as may be required or as may
be necessary to permit the preparation of financial statements in accordance
with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS. Pay and perform
all Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices, except where the failure to so pay or perform would not result in
a Material Adverse Effect; PROVIDED, that each Credit Party may contest any
item described in this Section 8.5 in good faith so long as adequate reserves
are maintained with respect thereto in accordance with GAAP.
41
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its
business, except where the failure to do so would not result in a Material
Adverse Effect.
SECTION 8.7 ENVIRONMENTAL LAWS. In addition to and without limiting
the generality of Section 8.6, (i) request and use commercially reasonable
efforts to get all tenants, and subtenants and the Innisbrook Owner to comply
with all applicable Environmental Laws and to obtain, comply with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except where the failure
to do so would not result in a Material Adverse Effect, (ii) conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws, and promptly
comply with all lawful orders and directives of any Governmental Authority
regarding Environmental Laws, except where the failure to do so would not
result in a Material Adverse Effect, and (iii) defend, indemnify and hold
harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, officers and directors, from
and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of any Credit Party, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, reasonable and actually incurred attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 8.8 COMPLIANCE WITH ERISA. In addition to and without
limiting the generality of Section 8.6, (a) comply with all applicable
provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans, (b) not take any
action or fail to take action the result of which could be a liability to the
PBGC or to a Multi-employer Plan, (c) not participate in any prohibited
transaction that could result in any civil penalty under ERISA or tax under
the Code, (d) operate each Employee Benefit Plan in such a manner that will
not incur any tax liability under Section 4980B of the Code or any liability
to any qualified beneficiary as defined in Section 4980B of the Code, and (e)
furnish to the Administrative Agent upon the Administrative Agent's request
such additional information about any Employee Benefit Plan as may be
reasonably requested by the Administrative Agent.
SECTION 8.9 COMPLIANCE WITH AGREEMENTS. Comply in all respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Participating Lease or Material Contract, except where
failure to comply would not result in a Material Adverse Effect; PROVIDED,
that each Credit Party may contest any such lease, agreement or other
instrument, including, without limitation, any Material Contract, in good
faith through applicable proceedings so long as adequate reserves are
maintained in accordance with GAAP.
42
SECTION 8.10 VISITS AND INSPECTIONS. Upon reasonable prior notice,
permit representatives of the Administrative Agent or any Lender, from time
to time during normal business hours, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results
of operations and business prospects.
SECTION 8.11 FURTHER ASSURANCES. Perform, make, execute and deliver
all such additional and further acts, things, deeds and instruments as the
Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes and the other Loan Documents. The Lenders shall
have the right to obtain, at the Borrower's expense, title insurance
policies, environmental reports, audits and appraisals of certain or all of
the golf course properties if required by any Governmental Authority having
jurisdiction over the Lenders, or any of them, or at any time following the
Termination Date if required by safe and sound banking practices as
determined in good faith by the Lenders, or any of them.
SECTION 8.12 LOI'S, PSA'S AND ENVIRONMENTAL ASSESSMENT REPORTS.
Deliver to the Administrative Agent and Lenders complete copies of all LOI's
and PSA's included on the monthly schedule furnished under Section 7.1(a)(i),
and copies of all financial information (including audited financials),
evaluation materials, title insurance policies, surveys and Environmental
Assessment Reports for each golf course property received by the Credit
Parties after the Closing Date, as and when received.
SECTION 8.13 ADDITIONAL PERFECTION DOCUMENTATION. Use reasonable
efforts to obtain all third party consents necessary to enable the Lenders to
obtain a perfected Lien on the Emerald Dunes, Xxxx Xxx, Oyster Bay and Mystic
Creek golf course properties, to the extent such properties continue to be
owned by the Credit Parties.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full,
unless consent has been obtained in the manner set forth in Section 13.11 of
this Agreement, GTA and the other Credit Parties (on a Consolidated basis)
will not:
SECTION 9.1 OPERATING INCOME. Permit the cash payments received by
the Borrower during any month from the Participating Leases with respect to
golf course properties owned by the Borrower and from the Innisbrook Assets
to be less than fifty percent (50%) of the payments required to be paid
during such month under the terms of such Participating Leases or the
Innisbrook Mortgage as in effect on April 1, 2001. Cash receipts and required
43
payments shall be prorated to the date of closing for any month in which the
closing of the sale of a golf course property or of the Innisbrook Assets
occurs. For purposes of determining the Borrower's compliance with this
Section 9.1 the following properties shall be excluded: Emerald Dunes, Cyprus
Creek, Polo Trace, Xxxx Xxx, Lost Oaks, Black Bear, Bonaventure, Sandpiper,
Sweetwater, Wekiva, Mystic Creek and from and after the date on which the
Borrower provides written notice to the Administrative Agent that one or more
of the events listed on SCHEDULE 9.1 has occurred, and for so long as such
event continues, the applicable Participating Leases or Innisbrook Assets
listed on SCHEDULE 9.1.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full,
unless consent has been obtained in the manner set forth in Section 13.11 of
this Agreement, none of the Credit Parties will:
SECTION 10.1 LIMITATIONS ON DEBT. Create, incur, assume or suffer to
exist any Debt except:
(a) The Obligations;
(b) Other secured Debt of the Credit Parties existing on the Closing
Date as set forth on SCHEDULE 10.1(b) and any refinancings, extensions, or
replacements thereof in a principal amount not in excess of the principal
amount thereof outstanding on the Closing Date; PROVIDED that there shall
be no recourse to the Borrower or any other Credit Party, directly or
indirectly, for the payment of such Debt and or to any property of the
Borrower or any other Credit Party, for the payment of such Debt (except
to the property securing the Debt), other than recourse that is
subordinated to the Obligations;
(c) Purchase money Debt of the Credit Parties incurred or assumed in
connection with the purchase of equipment or liquor licenses in an amount
not to exceed, together with the Debt permitted by Section 10.1(d), an
aggregate of $3,000,000 on any date of determination;
(d) Debt of the Credit Parties incurred or assumed in connection
with equipment leases in an amount not to exceed, together with the Debt
permitted by Section 10.1(c), an aggregate of $3,000,000 on any date of
determination; and
(e) Any other non-revolving, unsecured Debt of the Borrower.
SECTION 10.2 LIMITATIONS ON CONTINGENT OBLIGATIONS. Create, incur,
assume or suffer to exist any Contingent Obligations except Contingent
Obligations in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders or
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Contingent Obligations with respect to Debt permitted by Section 10.1 other
than Debt under Section 10.1(b) that is to be non-recourse.
SECTION 10.3 LIMITATIONS ON LIENS. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of
ERISA or Environmental Laws) not yet due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP;
(b) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, (i) which are not overdue for a period
of more than the greater of the applicable contractual period or sixty
(60) days, or (ii) which are being contested in good faith and by
appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP, or (iii) which a lessee of one of the
Borrower's golf course properties or the Innisbrook Owner is obligated to
discharge;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, trade
payables, obligations under workers' compensation, unemployment insurance
or similar legislation, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, and similar obligations;
(d) any attachment or judgment Lien not constituting an Event
of Default under Sections 11.1(o) or 11.1(p);
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
real property, which in the aggregate are not substantial in amount and
which are included in the public real property records as of the date
hereof or do not detract from the value of such property or impair the use
thereof in the ordinary course of business;
(f) Liens securing Debt permitted under Sections 10.1(c) and
(d); PROVIDED, that (i) such Liens shall be created substantially
simultaneously with the acquisition or lease of the related asset or shall
exist at the time such asset is acquired by the Credit Parties, (ii) such
Liens do not at any time encumber any property other than the property
financed by such Debt, (iii) the principal amount of Debt secured thereby
is not increased, and (iv) the principal amount of Debt secured by any
such Lien shall at no time exceed 100% of the original purchase price or
lease payment amount of such property at the time it was acquired; and
45
(g) Liens securing the Obligations and Debt permitted under
Section 10.1(b).
SECTION 10.4 LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS AND
ACQUISITIONS. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially
all or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit
to, or any investment in cash or by delivery of property in, any Person, or
enter into, directly or indirectly, any commitment or option in respect of
the foregoing except for the following:
(a) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency
thereof maturing within 120 days from the date of acquisition thereof,
(ii) commercial paper maturing no more than 120 days from the date of
creation thereof and currently having the highest rating obtainable from
either S&P or Xxxxx'x, (iii) certificates of deposit maturing no more than
120 days from the date of creation thereof issued by commercial banks
incorporated under the laws of the United States of America, each having
combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally
recognized rating agency, or (iv) time deposits maturing no more than
30 days from the date of creation thereof with commercial banks or savings
banks or savings and loan associations each having membership either in
the FDIC or the deposits of which are insured by the FDIC and in amounts
not exceeding the maximum amounts of insurance thereunder; (v) deposit
accounts; and (vi) repurchase agreements issued by any Lender having a
maturity of less than one year;
(b) existing loans to officers of GTA as set forth on
SCHEDULE 10.4(b);
(c) existing investments in golf course properties and related
improvements (capital expenditures in the ordinary course of business
shall be permitted);
(d) existing investments reflected on the financial statements
referred to in Section 6.1(l), and expenditures required pursuant to
any contracts in effect on the date hereof;
(e) investments in Subsidiaries now existing or hereafter formed
for the purpose of operating golf course properties, provided that any
Subsidiary formed after the date hereof shall become a Guarantor hereunder
concurrently with such formation; and
(f) any other investment or acquisition, with the prior written
consent of the Required Lenders.
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SECTION 10.5 LIMITATIONS ON MERGERS AND LIQUIDATION. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution) except in cases where a Credit Party is the surviving party in
the merger, consolidation or combination and except as permitted by this
Agreement and the assignment, subject to the Liens of the Administrative
Agent securing the Obligations, of all of its assets and liabilities to a
liquidating trust.
SECTION 10.6 LIMITATIONS ON SALE OF ASSETS. Convey, sell, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests, any sale-leaseback or similar transaction and the forgiveness of
any Debt), whether now owned or hereafter acquired except as follows:
The Borrower may dispose of its golf course properties, the Innisbrook
Assets and the Sandpiper Note and Mortgage, free and clear of the Liens in
favor of the Lenders in accordance with this Agreement, provided that the
Obligations shall be repaid in immediately available funds by an amount equal
to the greater of (x) 100% of the Net Cash Proceeds from the sale of such
property, and (y) the Stated Release Price for such property excluding the
amount of any Net Cash Proceeds that may be retained by the Borrower pursuant
to Section 2.4. Any proposed sale which would result in the Lenders receiving
less than an amount equal to the Stated Release Price in immediately
available funds shall require the prior written consent of the Required
Lenders. SCHEDULE 2 may not be modified without the prior approval of the
Required Lenders. The Administrative Agent shall deliver into escrow all
releases, reconveyances, termination statements and other documents
reasonably requested by Borrower or the purchaser of any such property to
evidence the termination of the Liens on such property in favor of the
Lenders, which shall be released from escrow and/or recorded concurrently
with the receipt by the Administrative Agent of the Mandatory Proceeds
Prepayment in respect of such property in immediately available funds.
SECTION 10.7 LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS. During any
Fiscal Year, declare or pay any dividends upon any of its capital stock,
partnership units or other equity ownership interests; purchase, redeem,
retire or otherwise acquire, directly or indirectly, any of its capital
stock, partnership units or other equity ownership interests, or make any
distribution of cash, property or assets among the holders of its capital
stock, partnership units or other equity ownership interests except GTA and
the Borrower may pay (i) dividends and distributions payable in the second
quarter of Fiscal Year 2001 in an amount not to exceed $3,626,006, so long as
no Default or Event of Default exists at the time of declaration thereof,
(ii) dividends that GTA is contractually obligated to pay to its preferred
shareholders in the aggregate amount of not more than $462,500 per quarter,
or, if the dividend payable on GTA's preferred stock increases by operation
of such contract to 12.5%, $625,000 per quarter, so long as no Default or
Event of Default exists at the time of declaration thereof and no Payment
Default exists at the time of payment thereof, (iii) such dividends as are
necessary to maintain its REIT status following receipt by the Administrative
Agent of the annual audited financial statements delivered pursuant to
Section 7.1(c), so long as no Default or Event of Default exists at the time
of declaration thereof and no Payment Default exists at the time of payment
thereof, (iv) dividends and distributions to the extent necessary to avoid
the imposition of income tax
47
under Section 857(b) of the Code and the imposition of excise tax under
Section 4981 of the Code, PROVIDED, HOWEVER, at the time such amounts exceed
an aggregate of $250,000, the full amount then distributable and all
subsequent such amounts shall be delivered to the Administrative Agent to be
held in escrow by the Administrative Agent until the Borrower is prepared to
make the required distributions to equity holders, (v) dividends and
distributions paid by the Borrower to GTA, GTA GP Inc. and GTA LP Inc. in
order to pay dividends and make distributions otherwise permitted hereunder,
and (vi) repurchases, redemptions, or other acquisitions of OP Units or GTA's
common stock in connection with the sales of assets permitted hereunder.
SECTION 10.8 TRANSACTIONS WITH AFFILIATES. Except as permitted under
Section 10.4, directly or indirectly: (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its
officers, directors, shareholders or other Affiliates, or to or from any
member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates, or (b) enter into, or be a party to, any transaction with any of
its Affiliates, except pursuant to the reasonable requirements of its
business and upon fair and reasonable terms that are fully disclosed to and
approved in writing by the Required Lenders and are no less favorable to it
than it would obtain in a comparable arm's length transaction with a Person
not its Affiliate; PROVIDED that (x) the Legends Transaction is not subject
to this covenant and (y) this covenant shall not prohibit sales of properties
to Affiliates that are permitted by Section 10.6, including any redemptions
or repurchases of equity made in connection therewith.
SECTION 10.9 CERTAIN ACCOUNTING CHANGES. Change its Fiscal Year, or
make any change in its accounting treatment and reporting practices except as
required by GAAP.
SECTION 10.10 RESTRICTIONS ON PREPAYMENTS. Voluntarily prepay any Debt
(other than Obligations) or amend any instrument evidencing the Debt of any
Credit Party if such amendment would have a Material Adverse Effect.
SECTION 10.11 AMENDMENTS. Other than the amendments described in
SCHEDULE 10.11, amend the Innisbrook Note, the Innisbrook Loan Agreement, the
Innisbrook Mortgage, or any ground lease or Participating Lease with respect
to any golf course property or the Sandpiper Note and Mortgage in any manner
materially adverse to any Credit Party taking into account, among other
things, (i) the financial condition of the applicable lessee or owner of such
golf course property and its ability to perform under the note, mortgage or
lease being amended, (ii) the risk of damage to the physical condition,
value, prospects or financial performance of such golf course property, or
other consequences to such golf course property and the Credit Parties if
such amendment is not entered into, and (iii) the effect of such amendment on
the prospects for the sale of the Innisbrook Note, the Innisbrook Loan
Agreement, the Innisbrook Mortgage, or the ground lease or Participating
Lease, or the Sandpiper Note and Mortgage, as the case may be, without the
prior written consent of the Required Lenders.
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ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. Each and every Default and Event of
Default under the Original Credit Agreement and the Bridge Loan Agreement,
known or unknown, which occurred prior to the Closing Date shall be deemed
waived or cured as of the Closing Date. Each of the following shall
constitute an Event of Default, whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment or order of any court or any order, rule or
regulation of any Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS. The Borrower
shall default in any payment of principal of any Loan or Note when and
as due (whether at maturity, by reason of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or
otherwise) of interest on any Loan or Note or the payment of any other
Obligation, and such default shall continue unremedied for five (5)
Business Days.
(c) MISREPRESENTATION. Any representation or warranty made or deemed
to be made by any Credit Party under this Agreement, any other Loan
Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or
deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. Any Credit
Party shall default in the performance or observance of any covenant or
agreement contained in Articles IX or X of this Agreement.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. Any
Credit Party shall default in the performance or observance of any term,
covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section 11.1) or any other
Loan Document and such default shall continue for a period of thirty (30)
days after written notice thereof has been given to such Credit Party by
the Administrative Agent; or if such default cannot reasonably be cured
within such period, the Borrower does not within such thirty (30)-day
period commence such act or acts as shall be necessary to remedy the
default and shall not cause such default to be cured within a reasonable
time, not to exceed, in any event, one hundred twenty (120) days.
(f) DEBT CROSS-DEFAULT. Any Credit Party shall (i) default in the
payment of any Debt other than the Notes and the Debt described in
SCHEDULE 11.1(f) in an aggregate amount, together with the Debt permitted
by subsection (ii) hereof, in excess of $2,000,000 on any date of
determination beyond the period of grace, if any, provided
49
in the instrument or agreement under which such Debt was created,
or (ii) be in material default in the observance or performance of
any other agreement or condition relating to any Debt (other than
the Notes) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause such Debt, together with the Debt permitted
by subsection (i) hereof, to become due prior to its stated
maturity.
(g) OTHER CROSS-DEFAULTS. Any Credit Party shall default in the
payment when due, or in the performance or observance, of any obligation
or condition of any Material Contract or any Participating Lease excluding
obligations under Material Contracts and Participating Leases described in
SCHEDULE 11.1(g) if such default would result in a Material Adverse Effect
unless, but only as long as, the existence of any such default is being
contested by such Credit Party in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the
books of such Credit Party to the extent required by GAAP.
(h) CHANGE IN CONTROL. (A) Any person or group of persons (within
the meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) other than GTA or Xxxxx Xxxxx, shall obtain ownership or control,
directly or indirectly, in one or more series of transactions of more than
thirty percent (30%) of the partnership interests or other equity
interests of the Borrower, or (B) more than fifty percent (50%) of the
board of directors of GTA shall change during any twelve month period,
exclusive of any change of members resulting from the death or
incompetency of board members.
(i) INTENTIONALLY OMITTED.
(j) REIT STATUS. GTA shall default in the performance of the
covenant contained in Section 3.7.
(k) VOLUNTARY BANKRUPTCY PROCEEDING. Any Credit Party shall
(i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take advantage of
any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy
laws or other laws, (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of itself or
of a substantial part of its property, domestic or foreign, (v) admit in
writing its inability to pay its debts as they become due, (vi) make a
general assignment for the benefit of creditors, or (vii) take any
corporate action for the purpose of authorizing any of the foregoing.
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(l) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against any Credit Party in any court of competent
jurisdiction seeking (i) relief under the federal bankruptcy laws (as now
or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for any Credit Party or for all or any
substantial part of their respective assets, domestic or foreign, and such
case or proceeding shall continue undismissed for a period of sixty (60)
consecutive days, or an order granting the relief requested in such case
or proceeding (including, but not limited to, an order for relief under
such federal bankruptcy laws) shall be entered.
(m) FAILURE OF AGREEMENTS. Any provision of this Agreement or of any
other Loan Document (other than any usury savings clause, waiver or
similar provision) shall for any reason cease to be valid and binding on
any Credit Party or any such Person shall so state in writing, any
Perfection Documentation shall for any reason cease to create a valid and
perfected Lien on any of the collateral purported to be covered thereby,
subject only to Permitted Liens, in each case other than in accordance
with the express terms of this Agreement or thereof, except to the extent
such failure results from actions or inactions by the Administrative
Agent.
(n) TERMINATION EVENT. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment
when due of all amounts which, under the provisions of any Pension Plan or
Section 412 of the Code, the Borrower or any ERISA Affiliate is required
to pay as contributions thereto, (ii) an accumulated funding deficiency in
excess of $1,000,000 occurs or exists, whether or not waived, with respect
to any Pension Plan, (iii) a Termination Event, or (iv) the Borrower or
any ERISA Affiliate as employers under one or more Multi-employer Plan
makes a complete or partial withdrawal from any such Multi-employer Plan
and the plan sponsor of such Multi-employer Plans notifies such
withdrawing employer that such employer has incurred a withdrawal
liability requiring payments in an amount exceeding $100,000.
(o) JUDGMENT, ATTACHMENT, GARNISHMENT, ETC. Judgments, attachments,
garnishments or orders for the payment of money excluding items described
in SCHEDULE 11.1(o) in an aggregate amount in excess of $2,000,000 on any
date of determination shall be entered against any Credit Party by any
court and such judgment or order shall continue undischarged or unstayed
for a period of thirty (30) days.
(p) EXECUTION. Writ or writs of execution excluding writs described
in SCHEDULE 11.1(p) in an aggregate amount in excess of $2,000,000 on any
date of determination shall be issued for the sale of any Collateral and
such writ or writs shall not be dismissed, discharged, stayed or quashed
within thirty (30) days of issuance.
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SECTION 11.2 REMEDIES. Upon the occurrence and during the continuance
of an Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall:
(a) ACCELERATION. Declare the principal of and interest on the Loans
and the Notes at the time outstanding, and all other amounts owed to the
Lenders and to the Administrative Agent under this Agreement or any of the
other Loan Documents and all other Obligations, to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding PROVIDED, that upon the
occurrence of an Event of Default specified in Section 11.1(k) or (l), all
Obligations shall automatically become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or the other Loan Documents
to the contrary notwithstanding.
(b) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement (including, without
limitation, those provided for in Article IV), the other Loan Documents
and Applicable Law, in order to satisfy all of the Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy
given under this Agreement or under the other Loan Documents or that may now
or hereafter exist at law or in equity or by suit or otherwise. No delay or
failure to take action on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege or shall be construed to be a waiver of
any Event of Default. No course of dealing between the Borrower, the
Administrative Agent and the Lenders or their respective agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a waiver of any
Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 APPOINTMENT, POWERS, AND IMMUNITIES.
(a) Each Lender hereby irrevocably appoints and authorizes Bank of
America to act as its Administrative Agent under this Agreement and the other
Loan Documents with such powers and discretion as are specifically and
respectively delegated to the Administrative
52
Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto.
(b) The Administrative Agent shall administer the Credit Facility in
the same manner as if all Loans were held by the Administrative Agent in its
own portfolio. The Administrative Agent shall forward to the Lenders all
documents received by the Administrative Agent from any Credit Party pursuant
to the terms of this Agreement, unless such Credit Party is obligated under
this Agreement to make delivery of such documents to the Lenders.
(c) The Administrative Agent (which term as used in this sentence and
in Section 12.5 and the first sentence of Section 12.6 of this Agreement
shall include its Affiliates and its own and its Affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement and shall
not be a trustee or fiduciary for any Lender; (b) shall not be responsible to
the Lenders for any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Loan Document or any
certificate or other document referred to or provided for in, or received by
any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan
Document, or any other document referred to or provided for therein or for
any failure by any Credit Party or any other Person to perform any of its
obligations under this Agreement; (c) shall not be responsible for or have
any duty to ascertain, inquire into, or verify the performance or observance
of any covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records) of any
Credit Party or any of its Subsidiaries or Affiliates; (d) shall not be
required to initiate or conduct any litigation or collection proceedings
under any Loan Document; and (e) shall not be responsible for any action
taken or omitted to be taken by it under or in connection with any Loan
Document, except for its own gross negligence or willful misconduct or breach
of an express agreement made by the Administrative Agent to any other Lender
contained herein. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.
SECTION 12.2 RELIANCE BY AGENT. The Administrative Agent shall be
entitled to rely upon any certification, notice, instrument, writing, or
other communication (including, without limitation, any thereof by telephone
or telecopy) reasonably believed by it to be genuine and correct and to have
been signed, sent or made by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel for any
Credit Party), independent accountants, and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee
of any Note as the holder thereof for all purposes of this Agreement unless
and until the Administrative Agent receives and accepts an Assignment and
Acceptance executed in accordance with Section 13.10. As to any matters not
expressly provided for by this Agreement, the Administrative Agent shall not
be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the Lenders;
PROVIDED,
53
HOWEVER, that the Administrative Agent shall not be required to take any
action that exposes the Administrative Agent to personal liability or that is
contrary to any Loan Document or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking any such action.
SECTION 12.3 DEFAULTS. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default or Event of Default
unless the Administrative Agent has received written notice from a Lender or
the Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default". In the event that any Lender receives
such a notice of the occurrence of a Default or Event of Default, such Lender
shall give prompt notice thereof to the Administrative Agent, the other
Lenders and the Borrower. The Administrative Agent shall (subject to Section
12.2 of this Agreement) take such action with respect to such Default or
Event of Default as shall reasonably be directed by the Required Lenders,
PROVIDED THAT, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest
of the Lenders.
SECTION 12.4 RIGHTS AS LENDER. With respect to the Loans made by it,
the Administrative Agent (and any successor acting as Agent) in its capacity
as a Lender under this Agreement shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it
were not acting as Administrative Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Administrative
Agent in its individual capacity. The Administrative Agent (and any successor
acting as Administrative Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or Affiliates as if
it were not acting as Administrative Agent, and the Administrative Agent (and
any successor acting as Administrative Agent) and its Affiliates may accept
fees and other consideration from any Credit Party or any of its Subsidiaries
or Affiliates for services in connection with this Agreement or otherwise
without having to account for the same to the Lenders.
SECTION 12.5 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent ratably in accordance with their respective Loans, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees), or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Administrative Agent (including by any
Lender) in any way relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Loan Document; PROVIDED that no Lender shall
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified or from the
breach of an express agreement or made by the Administrative Agent to any
Lenders contained herein. Without limitation of the foregoing, each Lender
agrees to reimburse the
54
Administrative Agent promptly upon demand for its ratable share of any costs
or expenses payable by the Borrower under Section 13.2, to the extent that
the Administrative Agent is not promptly reimbursed for such reasonable and
actually incurred costs and expenses by the Borrower. The agreements
contained in this Section shall survive payment in full of the Loans and all
other amounts payable under this Agreement.
SECTION 12.6 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
agrees that it has, independently and without reliance on the Administrative
Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Credit Parties
and their Subsidiaries and decision to enter into this Agreement and that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under the Loan Documents. Except for notices,
reports, and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent under this Agreement,
the Administrative Agent shall have no duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or Affiliates that may come into
the possession of the Administrative Agent or any of their Affiliates.
SECTION 12.7 RESIGNATION; REMOVAL OF AGENT; SUCCESSOR AGENTS.
(a) RESIGNATION OF AGENT. The Administrative Agent may resign at any
time by giving prior written notice thereof to the Lenders and the Borrower.
The Required Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders or such appointee shall not have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent which shall be an
Eligible Assignee having total assets of at least $25,000,000,000.
(b) REMOVAL OF ADMINISTRATIVE AGENT. The Lenders may remove the
Administrative Agent hereunder and appoint a successor Administrative Agent
upon not less than thirty (30) days' prior written notice signed by holders
of at least sixty six and two thirds percent (66.67%) of the aggregate unpaid
principal amount of the Notes (exclusive of the Notes held by the
Administrative Agent) if the Administrative Agent is grossly negligent or is
guilty of willful misconduct in the performance of its duties hereunder, as
determined in the reasonable discretion of the Lenders signing the foregoing
written notice.
(c) SUCCESSOR AGENTS. Upon the acceptance of any appointment as
Administrative Agent under this Agreement by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent upon
written notice thereof to Borrower, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement
excepting with respect to its willful misconduct or gross negligence
occurring prior to its discharge. After any retiring Administrative Agent's
resignation or removal under this Agreement as Administrative
55
Agent, the provisions of this Article 12 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
SECTION 12.8 DOCUMENTATION AGENT AND SYNDICATION AGENT. The
Documentation Agent and Syndication Agent, in their respective capacities as
a documentation agent and a syndication agent, shall have no duties or
responsibilities under this Agreement or any other Loan Document.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications under this Agreement shall be in
writing, or by telephone subsequently confirmed in writing. Any notice shall
be effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and
shall be presumed to be received by a party hereto (i) on the date of
delivery if delivered by hand or sent by telecopy, (ii) on the next Business
Day if sent by recognized overnight courier service, and (iii) on the third
Business Day following the date sent by certified mail, return receipt
requested. A telephonic notice to the Administrative Agent as understood by
the Administrative Agent will be deemed to be the controlling and proper
notice in the event of a discrepancy with or failure to receive a confirming
written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it
at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to the Borrower: Golf Trust of America, L.P.
x/x XXX
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: W. Xxxxxxx Xxxxx, XX and
Xxxxx X. Xxxxxx
Telephone No.: 843/000-0000
Telecopy No.: 843/723-0479
With copies to: O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone No.: 415/000-0000
Telecopy No.: 415/984-8701
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and: Xxxxxxx Xxxxxx & Durham, P.A.,
Attorneys at Law
The Carillon, Suite 1200
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: C. Xxxxxxx Xxxxxxx, Xx.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Guarantor: c/o Golf Trust of America, Inc.
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: W. Xxxxxxx Xxxxx, XX and
Xxxxx X. Xxxxxx
Telephone No.: 843/000-0000
Telecopy No.: 843/723-0479
If to Bank of America, Bank of America, N.A.
Administrative Agent: 000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255-001
Attention: Xxxxx Xxxxxx
Telephone No.: 704/000-0000
Telecopy No.: 704/386-5856
With copies to: Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: J. Xxxxxxx Xxxx
Telephone No.: 704/000-0000
Telecopy No.: 704/331-7598
If to any Lender: To the Address set forth on
SCHEDULE 1 hereto
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any
subsequent office which shall have been specified for such purpose by written
notice to the Borrower and Lenders, as the Administrative Agent's Office
referred to in this Agreement, to which payments due are to be made.
SECTION 13.2 EXPENSES; INDEMNIFICATION.
(a) The Borrower agrees to pay all reasonably and actually incurred
costs and expenses of the Administrative Agent and each of the Lenders in
connection with the
57
negotiation, preparation, execution and delivery of this Agreement, the other
Loan Documents, and the other documents to be delivered under this Agreement,
including, without limitation, the reasonable fees and expenses of counsel
for the Administrative Agent and each of the Lenders with respect thereto and
with respect to advising the Administrative Agent or any Lender as to their
rights and responsibilities under the Loan Documents, the amounts and payees
of which through the dates indicated are reflected on SCHEDULE 2.1(a). The
Borrower further agrees to pay (i) all reasonably and actually incurred costs
and expenses of the Administrative Agent in connection with the
administration, modification and amendment of this Agreement and the other
Loan Documents, and (ii) all reasonably and actually incurred costs and
expenses of the Administrative Agent and each of the Lenders in connection
with the modification or amendment of this Agreement while an Event of
Default is continuing and in connection with enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered under this Agreement. In each instance,
reasonably and actually incurred costs and expenses shall include, without
limitation, reasonable and actually incurred attorneys' fees and expenses and
the reasonably and actually incurred cost of internal counsel.
(b) The Borrower agrees to indemnify and hold harmless each Agent and
each Lender and each of their Affiliates and their respective officers,
directors, employees, agents, and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities, costs, and
expenses (including, without limitation, reasonable and actually incurred
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions
contemplated in this Agreement or the actual or proposed use of the proceeds
of the Loans, except to the extent such claim, damage, loss, liability, cost,
or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 13.2 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Credit Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees not to assert any
claim against any Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers,
on any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Loan Documents, any of
the transactions contemplated in this Agreement or the actual or proposed use
of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower under this Agreement, the agreements and obligations of the Borrower
contained in this Section 13.2 shall survive the payment in full of the Loans
and all other amounts payable under this Agreement.
58
(d) Notwithstanding any provision in this Agreement to the contrary,
the agreements and obligations of the Borrower contained in Section 13.2 of
the Original Credit Agreement and Section 13.2 of the Bridge Loan Agreement
shall survive the execution of this Agreement and the payment in full of the
Loans and all other amounts payable under this Agreement.
SECTION 13.3 SET-OFF. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders and any assignee or participant of a Lender
in accordance with Section 13.10 are hereby authorized by the Borrower at any
time or from time to time, without notice to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured) and any other indebtedness at any
time held or owing by the Lenders, or any such assignee or participant to or
for the credit or the account of the Borrower against and on account of the
Obligations irrespective of whether or not (a) the Lenders shall have made
any demand under this Agreement or any of the other Loan Documents or (b) the
Administrative Agent shall have declared any or all of the Obligations to be
due and payable as permitted by Section 11.2 and although such Obligations
shall be contingent or unmatured.
SECTION 13.4 GOVERNING LAW. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, and construed and enforced in accordance with, the laws of the
State of
North Carolina, without reference to the conflicts or choice of law
principles thereof.
SECTION 13.5 CONSENT TO JURISDICTION. Each Credit Party hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County,
North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this
Agreement, the Notes and the other Loan Documents, any rights or obligations
under this Agreement or thereunder, or the performance of such rights and
obligations. Each Credit Party hereby irrevocably consents to the service of
a summons and complaint and other process in any action, claim or proceeding
brought by either the Agent or any Lender in connection with this Agreement,
the Notes or the other Loan Documents, any rights or obligations under this
Agreement or thereunder, or the performance of such rights and obligations,
on behalf of itself or its property, in the manner specified in Section 13.1.
Nothing in this Section 13.5 shall affect the right of either the Agent or
any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of either the Agent or any Lender to bring any action
or proceeding against any Credit Party or its properties in the courts of any
other jurisdictions.
SECTION 13.6 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW,
EACH AGENT, EACH LENDER AND EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY
59
DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT OR THEREUNDER, OR
THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 13.7 REVERSAL OF PAYMENTS. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of
the Lenders which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or proceeds had not been received by the
Administrative Agent.
SECTION 13.8 INJUNCTIVE RELIEF; PUNITIVE DAMAGES.
(a) Each Credit Party recognizes that in the event the Borrower fails
to perform, observe or discharge any of its obligations or liabilities under
this Agreement, any remedy of law may prove to be inadequate relief to the
Lenders. Therefore, each Credit Party agrees that the Lenders, at the
Lenders' option, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
(b) The Agents, the Lenders and the Credit Parties hereby agree that no
such Person shall have a remedy of punitive or exemplary damages against any
other party to a Loan Document and each such Person hereby waives any right
or claim to punitive or exemplary damages that they may now have or may arise
in the future in connection with any judicial proceeding, dispute, claim or
controversy arising out of, connected with or relating to the Notes or any
other Loan Documents ("Disputes"), whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party in any Dispute and hereby waive any
right or claim to punitive or exemplary damages they have now or which may
arise in the future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
SECTION 13.9 ACCOUNTING MATTERS. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by
any Credit Party to determine compliance with any covenant contained in this
Agreement, shall, except as otherwise expressly contemplated hereby or unless
there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrower, be performed in accordance with GAAP as
in effect on the Closing Date. In the event that changes in GAAP shall be
mandated by the Financial Accounting Standards Board, or any similar
accounting body of comparable standing, or shall be recommended by the
Borrower's certified public accountants, to the extent that such changes
would modify such accounting terms or the interpretation or computation
thereof, such changes shall be followed in defining such accounting terms
only from and after the date the
60
Borrower and the Lenders shall have amended this Agreement to the extent
necessary to reflect any such changes in the financial covenants and other
terms and conditions of this Agreement.
SECTION 13.10 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Loans and its Notes); PROVIDED,
HOWEVER, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, any such partial assignment shall be in an amount at least
equal to $10,000,000 or an integral multiple of $1,000,000 in excess
thereof;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and its Note;
(iv) the parties to such assignment shall execute and deliver to the
Administrative Agent for its acceptance an Assignment and Acceptance in
the form of EXHIBIT B hereto (an "Assignment and Acceptance"), together
with any Note subject to such assignment and, except in cases of
assignment to a Lender or an Affiliate of a Lender, a processing fee of
$3,500; and
(v) the Borrower shall receive prior written notice thereof.
Upon execution, delivery, and acceptance of such Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender under this
Agreement and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this
Agreement excepting with respect to any gross negligence or willful
misconduct on the part of such assigning Lender prior to the date of such
assignment. Upon the consummation of any assignment pursuant to this Section,
the assignor, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, new Notes are issued to the
assignor and the assignee. 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 Taxes in accordance with Section 3.5.
(b) The Administrative Agent shall maintain at its address referred to
in Section 13.1 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses
of the Lenders and the principal amount of the Loans owing to each Lender
from time to time (the "Register"). The entries in the
61
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender under this
Agreement for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower (or any of its agents or advisors) or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with the Note subject to such assignment and
payment of the processing fee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form
of EXHIBIT B hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt
written notice thereof to the parties thereto and to the Borrower.
(d) Each Lender may sell participations in minimum amounts of
$10,000,000 to one or more Persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Loans);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the right of set-off
contained in Section 3.4, and (iv) the Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
to enforce the obligations of the Borrower relating to its Loans and its Note
and to approve any amendment, modification, or waiver of any provision of
this Agreement (other than amendments, modifications, or waivers increasing
or decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Note, extending the maturity date or any scheduled
principal payment date or date fixed for the payment of interest on such
Loans or Note.
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans
and its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Lender from its obligations
under this Agreement.
(f) Any Lender may furnish any information concerning the Credit
Parties in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants).
SECTION 13.11 AMENDMENTS AND WAIVERS. Any provision of this Agreement
or any other Loan Document may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders (and, if Article XII or the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent);
PROVIDED that no such amendment or waiver shall, unless signed by all the
Lenders, (i) impose on any Lender an obligation to make any further Loans,
(ii) reduce the principal of or rate of interest on any Loan or any fees or
other amounts payable under this Agreement, (iii) postpone any date fixed for
the payment of any scheduled installment of
62
principal of or interest on any Loan or any fees or other amounts payable
hereunder, (iv) change the percentage of the unpaid principal amount of the
Notes, or the number of Lenders, which shall be required for the Lenders, the
Administrative Agent or any of them to take any action under this Section or
any other provision of this Agreement, (v) release any Guarantor, (vi) modify
any provision of Article IX or (vii) modify the provisions of Section 10.3,
this Section 13.11, the definition of Required Lenders, or any provision of
any Loan Document which, by its terms, requires the consent, approval or
satisfaction of all Lenders or each Lender, without the prior written consent
of each Lender.
SECTION 13.12 PERFORMANCE OF DUTIES. Each Credit Party's obligations
under this Agreement and each of the Loan Documents shall be performed by
such Credit Party at its sole cost and expense.
SECTION 13.13 ALL POWERS COUPLED WITH INTEREST. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to
any provisions of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied.
SECTION 13.14 SURVIVAL OF INDEMNITIES. Notwithstanding any termination
of this Agreement, the indemnities to which the Agents and the Lenders are
entitled under the provisions of this Article XIII and any other provision of
this Agreement and the other Loan Documents shall continue in full force and
effect and shall protect the Agents and the Lenders against events arising
after such termination as well as before.
SECTION 13.15 TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.16 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions of this Agreement or
thereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 13.17 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and shall be binding upon all parties, their successors and assigns,
and all of which taken together shall constitute one and the same agreement.
SECTION 13.18 RELEASE.
(a) In consideration of the agreements of the Administrative Agent and
the Lenders
63
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Borrower and the
Guarantors, on behalf of themselves and their successors, assigns, and other
legal representatives, hereby absolutely, unconditionally and irrevocably
release, remise and forever discharge the Administrative Agent and the
Lenders, and their successors and assigns, and present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (the
Administrative Agent and the Lenders and all such other Persons being
hereinafter referred to in this Section 13.18 and Section 13.19 collectively
as the "Releasees" and individually as a "Releasee"), of and from all
demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills,
reckonings, damages and any and all other claims, counterclaims, defenses,
rights of set-off, demands and liabilities whatsoever (individually, referred
to in this Section 13.18 and Section 13.19 as a "Claim" and collectively,
"Claims") of every name and nature, known or unknown, suspected or
unsuspected, both at law and in equity, which the Borrower, the Guarantors or
any of their successors, assigns, or other legal representatives may now or
hereafter own, hold, have or claim to have against the Releasees or any of
them for, upon, or by reason of any circumstance, action, cause or thing
whatsoever which arises at any time on or prior to the day and date of this
Agreement, to the extent, and only to the extent, such Claims are for or on
account of, or in relation to, or in any way in connection with the Original
Credit Agreement or the other "Loan Documents" (as defined therein), the
Bridge Loan Agreement or the other Loan Documents (as defined therein) or
transactions thereunder or related thereto.
(b) The Borrower and the Guarantors understand, acknowledge and agree
that the release set forth above may be pled as a full and complete defense
and may be used as a basis for an injunction against any action, suit or
other proceeding which may be instituted, prosecuted or attempted in breach
of the provisions of such release.
(c) The Borrower and the Guarantors agree that no fact, event,
circumstance, evidence or transaction which could now be asserted or which
may hereafter be discovered shall affect in any manner the final, absolute
and unconditional nature of the release set forth above.
SECTION 13.19 COVENANT NOT TO XXX BY CREDIT PARTIES. Each of the
Borrower and the Guarantors, on behalf of themselves and their successors,
assigns, and other legal representatives, hereby absolutely, unconditionally
and irrevocably, covenants and agrees with and in favor of each Releasee that
it will not xxx (at law, in equity, in any regulatory proceeding or
otherwise) any Releasee on the basis of any Claim released, remised and
discharged by the Borrower pursuant to Section 13.18 above. If the Borrower
or the Guarantors, or any of their successors, assigns or other legal
representations violates the foregoing covenant, the Borrower and the
Guarantors, for themselves and their successors, assigns and legal
representatives, agree to pay, in addition to such other damages as any
Releasee may sustain as a result of such violation, all attorneys' fees and
costs incurred by any Releasee as a result of such violation.
SECTION 13.20 AMENDMENT AND RESTATEMENT. At the time of the
effectiveness of this Agreement, this Agreement shall amend, restate and
supersede the Original Credit Agreement and the Bridge Loan Agreement and the
Loan Documents (as defined therein) other
64
than the Notes and other than as provided in Section 2.1(a) but shall not
constitute a novation of the Notes or the amounts due thereunder.
SECTION 13.21 DISMISSAL OF STATE COURT LITIGATION. On the Closing Date,
the Administrative Agent and each of the Borrower and the Guarantors agree to
direct their respective counsel of record in the State Court Litigation to
stipulate to the dismissal without prejudice of the State Court Litigation,
with the Credit Parties to bear the costs thereof, as provided herein.
SECTION 13.22 NO PERSONAL LIABILITY. No stockholder, officer, director,
employee or agent, past, present or future, of any Credit Party shall have
any personal liability under any Loan Document by reason of his, her or its
status as such stockholder, officer, director, employee or agent.
SECTION 13.23 REVIEWED BY ATTORNEYS. The Borrower and the Guarantors
represent and warrant to the Lenders that they (a) understand fully the terms
of this Agreement and the consequences of the execution and delivery of this
Agreement, (b) have been afforded an opportunity to have this Agreement
reviewed by, and to discuss this Agreement and document executed in
connection herewith, with such attorneys and other Persons as the Borrower
and the Guarantors may wish, and (c) have entered into this Agreement and
executed and delivered all documents in connection herewith of their own free
will and accord and without threat, duress or other coercion of any kind by
any Person. The parties hereto acknowledge and agree that neither this
Agreement nor the other documents executed pursuant hereto shall be construed
more favorably in favor of one than the other based upon which party drafted
the same, it being acknowledged that all parties hereto contributed
substantially to the negotiation and preparation of this Agreement and the
other documents executed pursuant hereto or in connection herewith.
SECTION 13.24 AUTHORIZATION TO FILE FINANCING STATEMENTS; POWER OF
ATTORNEY. Each of the Credit Parties granting a security interest in any
Collateral hereby authorizes the Administrative Agent at any time and from
time to time to file any initial financing statements under the Uniform
Commercial Code, amendments thereto and continuation statements with or
without signature of the applicable Credit Party as authorized by applicable
law, as applicable to all or part of the Collateral in which such Credit
Party has an interest. For purposes of such filings, each of the Credit
Parties, as applicable, agrees to furnish any information reasonably
requested by the Administrative Agent promptly upon request therefor by the
Administrative Agent. Each of the Credit Parties hereby irrevocably
constitutes and appoints the Administrative Agent and any officer or agent of
the Administrative Agent, with full power of substitution, as its true and
lawful attorneys-in-fact with full irrevocable power and authority in the
place and the stead of such Credit Party or in the name of such Credit Party
to execute in the name of such Credit Party any such documents and otherwise
to carry out the purposes of this Section 13.24, to the extent that the
authorization above by such Credit Party is not sufficient. This power of
attorney is a power coupled with an interest and shall be irrevocable.
65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
GOLF TRUST OF AMERICA, L.P., a Delaware
limited partnership
By: GTA GP, Inc., a Maryland corporation, its
general partner
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer and President
GOLF TRUST OF AMERICA, INC., a Maryland
corporation
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer and President
GTA GP, INC., a Maryland corporation
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer and President
GTA LP, INC., a Maryland corporation
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer and President
SANDPIPER-GOLF TRUST, LLC, a Delaware limited
liability company
By: Golf Trust of America, L.P., as Manager
By: GTA GP, Inc., its General Partner
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer
GTA TIERRA DEL SOL, LLC, a South Carolina
Limited Liability Company
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its Chief Executive Officer
GTA OSAGE, LLC, a South Carolina Limited
Liability Company
By: ________________________________________
W. Xxxxxxx Xxxxx, XX
Its President
BANK OF AMERICA, N.A.,
as Administrative Agent and Lender
By: ________________________________________
Name: ________________________________
Title: ________________________________
FLEET NATIONAL BANK, as Documentation Agent
and Lender
By: ________________________________________
Name: ________________________________
Title: ________________________________
FIRST UNION NATIONAL BANK, as Syndication
Agent and Lender
By: ________________________________________
Name: ________________________________
Title: ________________________________
CREDIT LYONNAIS NEW YORK BRANCH, as Lender
By: ________________________________________
Name: ________________________________
Title: ________________________________
SOCIETE GENERALE, SOUTHWEST AGENCY, as Lender
By: ________________________________________
Name: ________________________________
Title: ________________________________
SCHEDULE 1: LENDERS AND OUTSTANDING LOANS
PRINCIPAL VOTING
LENDER OUTSTANDING PERCENTAGE
------ ----------- ----------
Bank of America, N.A. $ 55,981,765.20 37.5%
Xxx Xxxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
NC1-001-13-26
Charlotte, North Carolina 28255-0001
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
First Union National Bank $ 29,858,167.03 20.0%
000 Xxxxx Xxxxxxx Xxxxxx XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Fleet National Bank $ 29,858,167.03 20.0%
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Credit Lyonnais New York Branch $ 18,661,814.00 12.5%
0000 Xxxxxx of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx-Xxxxxxx van Essche
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Societe Generale, Southwest Agency $ 14,927,247.10 10.0%
Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Day
Managing Director
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
---------------- ------
100.0%
SUBTOTAL $149,287,160.36
Bridge Loan 2,025,986.08
----------------
GRAND TOTAL $151,313,146.44
