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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[x] Annual report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended December 31, 1998
[ ] Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from ________ to
________.
GOLF TRUST OF AMERICA, INC.
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(Exact name of registrant as specified in its charter)
Maryland 33-0724736
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification Number)
14 North Adger's Wharf, Charleston, SC 29401
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(Address of principal executive offices) (Zip Code)
(843) 723-4653
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(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name Of Each Exchange On Which Registered
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Common Stock, $0.01 par value American Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes /X/ No / /
<PAGE>
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
On March 26, 1999 there were 7,682,956 common shares outstanding of the
registrant's only class of common stock. Based on the March 26, 1999 closing
price of $21.75 per share, the aggregate market value of the voting stock held
by nonaffiliates of the registrant was $167,104,293.
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the Registrant's definitive Proxy Statement, filed with the
Securities and Exchange Commission pursuant to Regulation 14A on March 29, 1999,
are incorporated by reference in Part III of this Form 10-K; and certain
exhibits to the Company's prior reports on Forms 10-Q and 8-K, Registration
Statements of Employee Stock Purchase Plan and Employee Stock Option Plans on
Forms S-8 (Nos. 333-46659 and 333-46657), and Registration Statements on Form
S-11 (Nos. 333-15965 and 333-36847) are incorporated by reference in Part IV
hereof.
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2
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EXHIBIT INDEX
Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit
index immediately precedes the exhibits.
The following exhibits are part of this Annual Report on Form
10-K/A (and are numbered in accordance with Item 601 of Regulation S-K). Items
marked with an asterisk (*) are filed herewith.
<TABLE>
<CAPTION>
No. Description
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<S> <C>
3.1 Articles of Amendment and Restatement of the Company, as filed
with the State Department of Assessments and Taxation of
Maryland on January 31, 1997, (previously filed as Exhibit
3.1A to the Company's Registration Statement on Form S-11
(Commission File No. 333-15965) Amendment No. 2 (filed January
30, 1997) and incorporated herein by reference).
3.2 Articles of Amendment of the Company, as filed with the State
Department of Assessments and Taxation of Maryland on June 9,
1998 (previously filed as Exhibit 3.2B to the Company's
Quarterly Report on Form 10-Q (Commission File No. 000-22091),
filed August 14, 1998 and incorporated herein by reference).
3.3 Bylaws of the Company, as amended by the Board of Directors on
February 16, 1998 and as currently in effect (previously filed
as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q
(Commission File No. 000-22091), filed May 15, 1998 and
incorporated herein by reference).
10.1.1 First Amended and Restated Agreement of Limited Partnership of
the Operating Partnership (the "Partnership Agreement"), dated
February 12, 1997 (previously filed as Exhibit 10.1 to the
Company's Annual Report on Form 10-K (Commission File No.
000-22091), filed March 31, 1997, and incorporated herein by
reference).
10.1.2 First Amendment to the Partnership Agreement, dated as of
February 1, 1998 (previously filed as Exhibit 10.1.2 to the
Company's Annual Report on Form 10-K (Commission File No.
000-22091), filed March 31, 1998, and incorporated herein by
reference).
10.1.3 Exhibit A to the Partnership Agreement (Schedule of
Partnership Interests), as revised through March 26, 1999
(included in the Form 10-K filed March 31, 1999).
3
<PAGE>
10.2.1 Credit Agreement, dated as of June 20, 1997, by and among Golf
Trust of America, L.P., as Borrower, Golf Trust of America,
Inc., GTA GP, Inc. and GTA LP, Inc., as Guarantors, the
Lenders referred to therein, and NationsBank N.A., as Agent
(previously filed as Exhibit 10.1 to the Company's Current
Report on Form 8-K (Commission File No. 000-22091), dated June
20, 1997 and filed August 12, 1997, and incorporated herein by
reference).
10.2.2* Amended and Restated Credit Agreement, dated as of July 9,
1998, by and among Golf Trust of America, L.P., as Borrower,
Golf Trust of America, Inc., GTA GP, Inc. and GTA LP, Inc., as
Guarantors, the Lenders referred to therein, and NationsBank
N.A., as Agent.
10.3 Loan Agreement, dated as of June 20, 1997, by and between Golf
Host Resorts, Inc., as Borrower, and Golf Trust of America,
L.P., as Lender (previously filed as Exhibit 10.2 to the
Company's Current Report on Form 8-K (Commission File No.
000-22091), dated June 20, 1997 and filed August 12, 1997, and
incorporated herein by reference).
10.4 1997 Non-Employee Directors' Plan of the Company (previously
filed as Exhibit 10.7 to the Company's Registration Statement
on Form S-11 (Commission File No. 333-15965) Amendment No. 1
(filed January 15, 1997) and incorporated herein by
reference).
10.5 1997 Stock Incentive Plan (the "Original 1997 Plan") of the
Company (previously filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-11 (Commission File No.
333-15965) Amendment No. 1 (filed January 15, 1997) and
incorporated herein by reference).
10.6 1997 Stock-Based Incentive Plan of the Company (the "New 1997
Plan") (previously filed as Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q (Commission File No. 000-22091),
filed August 15, 1997, and incorporated herein by reference).
10.7 Form of Nonqualified Stock Option Agreement for use under the
New 1997 Plan (previously filed as Exhibit 10.4 to the
Company's Quarterly Report on Form 10-Q (Commission File No.
000-22091), filed August 15, 1997, and incorporated herein by
reference).
10.8 Form of Employee Incentive Stock Option Agreement for use
under the New 1997 Plan (previously filed as Exhibit 10.5 to
the Company's Quarterly Report on Form 10-Q (Commission File
No. 000-22091), filed August 15, 1997, and incorporated herein
by reference).
4
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10.9 General Provisions Applicable to Restricted Stock Awards
Granted Under the New 1997 Plan (previously filed as Exhibit
10.14 to the Company's Registration Statement on Form S-11
(Commission File No. 333-36847), dated September 30, 1997 and
filed as of October 1, 1997, and incorporated herein by
reference).
10.10 Form of Restricted Stock Award Agreement for use under the New
1997 Plan (previously filed as Exhibit 10.15 to the Company's
Registration Statement on Form S-11 (Commission File No.
333-36847), dated September 30, 1997 and filed as of October
1, 1997, and incorporated herein by reference).
10.11 1998 Stock-Based Incentive Plan of the Company (previously
filed as Exhibit A to the Company's definitive Proxy
Statement, dated April 1, 1999 and filed March 29, 1999, and
incorporated herein by reference).
10.12 Employee Stock Purchase Plan of the Company (previously filed
as Exhibit 4.1 to the Company's Registration Statement on Form
S-8 (Commission File No. 333-46659), filed February 20, 1998,
and incorporated herein by reference).
10.13 Subscription Agreement for use with the Employee Stock
Purchase Plan (previously filed as Exhibit 4.2 to the
Company's Registration Statement on Form S-8 (Commission File
No. 333-46659), filed February 20, 1998, and incorporated
herein by reference).
10.14 Employment Agreement between the Company and W. Bradley Blair,
II dated February 7, 1997 (previously filed as Exhibit 10.7 to
the Company's Annual Report on Form 10-K (Commission File No.
000-22091), filed March 31, 1997, and incorporated herein by
reference).
10.15 Amended and Restated Employment Agreement between the Company
and David D. Joseph (a.k.a. David J. Dick), dated July 25,
1997 (previously filed as Exhibit 10.17 to the Company's
Registration Statement on Form S-11 (Commission File No.
333-36847), dated September 30, 1997 and filed as of October
1, 1997, and incorporated herein by reference).
10.16 Amended and Restated Employment Agreement between the Company
and Scott D. Peters, dated July 25, 1997 (previously filed as
Exhibit 10.18 to the Company's Registration Statement on Form
S-11 (Commission File No. 333-36847), dated September 30, 1997
and filed as of October 1, 1997, and incorporated herein by
reference).
16.1 Letter of Price Waterhouse LLP, former independent accountants
of the Company (previously filed as Exhibit 16.1 to the
Company's amended Current Report on Form 8-K dated February
26, 1997 (filed March 17, 1997) and incorporated herein by
reference).
21.1 List of Subsidiaries of the Company (included in the Form 10-K
filed March 31, 1999).
5
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23.1 Consent of BDO Seidman LLP (included in the Form 10-K filed
March 31, 1999).
24.1 Powers of Attorney (included under the caption "Signatures" in
the Form 10-K filed March 31, 1999).
</TABLE>
* Filed herewith
6
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized, in Charleston, South
Carolina, on March 31, 1999.
GOLF TRUST OF AMERICA, INC.
By: /s/ W. Bradley Blair, II
-------------------------------------
W. Bradley Blair, II
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons in the capacities and
on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- -------------------------------------- --------------------------------------
<S> <C> <C>
/s/ W. Bradley Blair, II President, Chief Executive Officer March 31, 1999
- ---------------------------------------- and Chairman of the Board of
W. Bradley Blair, II Directors
/s/ * Executive Vice President and Director March 31, 1999
- ----------------------------------------
David D. Joseph
/s/ Scott D. Peters Senior Vice President and Chief March 31, 1999
- ---------------------------------------- Financial Officer
Scott D. Peters
/s/ * Director March 31, 1999
- ----------------------------------------
Roy C. Chapman
/s/ * Director March 31, 1999
- ----------------------------------------
Raymond V. Jones
/s/ * Director March 31, 1999
- ----------------------------------------
Fred W. Reams
/s/ * Director March 31, 1999
- ----------------------------------------
Edward L. Wax
* POWER OF ATTORNEY
By: /s/ W. Bradley Blair, II
- ----------------------------------------
W. Bradley Blair, II
</TABLE>
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CREDIT AGREEMENT
dated as of July 9, 1998
by and among
GOLF TRUST OF AMERICA, L.P.,
as Borrower,
GOLF TRUST OF AMERICA, INC.,
GTA GP, INC. and GTA LP, INC.,
as Guarantors,
the Lenders referred to in this Agreement,
and
NATIONSBANK, N.A.
as Administrative Agent
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent
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TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS.......................................................1
SECTION 1.1 Definitions....................................................1
SECTION 1.2 Amended and Restated Credit Agreement..........................6
SECTION 1.3 General........................................................6
SECTION 1.4 Other Definitions and Provisions...............................6
ARTICLE II CREDIT FACILITY..................................................6
SECTION 2.1 Loans..........................................................6
SECTION 2.2 Procedure for Advances of Loans................................7
SECTION 2.3 Repayment of Loans.............................................7
SECTION 2.4 Notes..........................................................8
SECTION 2.5 Termination of Credit Facility.................................8
SECTION 2.6 Use of Proceeds................................................9
ARTICLE III GENERAL LOAN PROVISIONS.........................................9
SECTION 3.1 Interest.......................................................9
SECTION 3.2 Notice and Manner of Conversion or Continuation of Loans......11
SECTION 3.3 Commitment Fee................................................11
SECTION 3.4 Payment.......................................................11
SECTION 3.5 Right of Set-off; Adjustments.................................12
SECTION 3.6 Nature of Obligations of Lenders Regarding Loans; Assumption
by the Administrative Agent..................................13
SECTION 3.7 Indemnity.....................................................13
SECTION 3.8 Increased Cost and Reduced Return.............................14
SECTION 3.9 Limitation on Types of Loans..................................15
SECTION 3.10 Illegality....................................................15
SECTION 3.11 Treatment of Affected Loans...................................16
SECTION 3.12 Compensation..................................................16
SECTION 3.13 Taxes.........................................................16
ARTICLE IV GUARANTY........................................................18
SECTION 4.1 Guaranty of Obligations of Borrower...........................18
SECTION 4.2 Nature of Guaranty............................................18
SECTION 4.3 Demand by the Administrative Agent............................19
SECTION 4.4 Waivers.......................................................20
SECTION 4.5 Benefits of Guaranty..........................................20
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 4.6 Modification of Loan Documents etc............................20
SECTION 4.7 Reinstatement.................................................21
SECTION 4.8 Waiver of Subrogation and Contribution........................21
SECTION 4.9 Remedies......................................................22
SECTION 4.10 Limit of Liability............................................22
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING.....................22
SECTION 5.1 Closing.......................................................22
SECTION 5.2 Conditions to Closing and Initial Loan........................22
SECTION 5.3 Conditions to All Loans.......................................25
ARTICLE VI REPRESENTATIONS AND WARRANTIES..................................25
SECTION 6.1 Reaffirmation of Representations and Warranties...............25
SECTION 6.2 No Material Change............................................25
ARTICLE VII FINANCIAL INFORMATION AND NOTICES..............................26
ARTICLE VIII AFFIRMATIVE COVENANTS.........................................26
SECTION 8.1 Compliance with Amended and Restated Credit Agreement.........25
SECTION 8.2 Debt Placement/Equity Offering................................25
SECTION 8.3 Supplemental Guarantors.......................................25
ARTICLE IX FINANCIAL COVENANTS.............................................26
ARTICLE X NEGATIVE COVENANTS...............................................27
ARTICLE XI DEFAULT AND REMEDIES............................................27
SECTION 11.1 Events of Default.............................................27
SECTION 11.2 Remedies......................................................28
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc...............28
ARTICLE XII THE AGENTS.....................................................29
SECTION 12.1 Appointment, Powers, and Immunities...........................29
SECTION 12.2 Reliance by Agents............................................30
</TABLE>
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<TABLE>
<S> <C>
SECTION 12.3 Defaults......................................................30
SECTION 12.4 Rights as Lender..............................................30
SECTION 12.5 Indemnification...............................................31
SECTION 12.6 Non-Reliance on Agent and Other Lenders.......................31
SECTION 12.7 Resignation; Removal of Agents; Successor Agents..............31
ARTICLE XIII MISCELLANEOUS.................................................32
SECTION 13.1 Notices.......................................................32
SECTION 13.2 Expenses; Indemnification.....................................34
SECTION 13.3 Set-off.......................................................35
SECTION 13.4 Governing Law.................................................35
SECTION 13.5 Consent to Jurisdiction.......................................35
SECTION 13.6 Waiver of Jury Trial..........................................36
SECTION 13.7 Reversal of Payments..........................................36
SECTION 13.8 Injunctive Relief; Punitive Damages...........................36
SECTION 13.9 Accounting Matters............................................37
SECTION 13.10 Assignments and Participations................................37
SECTION 13.11 Amendments and Waivers........................................39
SECTION 13.12 Performance of Duties.........................................39
SECTION 13.13 All Powers Coupled with Interest..............................39
SECTION 13.14 Survival of Indemnities.......................................39
SECTION 13.15 Titles and Captions...........................................39
SECTION 13.16 Severability of Provisions....................................39
SECTION 13.17 Counterparts..................................................40
SECTION 13.18 Term of Agreement.............................................40
</TABLE>
<PAGE>
SCHEDULES
<TABLE>
<S> <C>
1 - Lenders and Commitments
EXHIBITS
A - Form of Note
B - Form of Notice of Borrowing
C - Form of Notice of Prepayment
D - Form of Notice of Conversion/Continuation
E - Form of Officer's Compliance Certificate
F - Form of Assignment and Acceptance
G - Form of Guaranty Supplement
</TABLE>
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 9th day of July, 1998, by and among
(i) GOLF TRUST OF AMERICA, L.P., a limited partnership formed under the laws
of Delaware (the "Borrower"), (ii) GOLF TRUST OF AMERICA, INC., a Maryland
corporation ("GTA"), GTA GP, INC. and GTA LP, INC., each a Maryland
corporation and a wholly-owned subsidiary of GTA (collectively with GTA, the
"Guarantors"), (iii) the Lenders who are or may become a party to this
Agreement, (iv) NATIONSBANK, N.A. ("NationsBank"), as Administrative Agent
for the Lenders, and (v) BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent for the Lenders.
STATEMENT OF PURPOSE
The Guarantors and the Borrower have requested, and the Lenders have
agreed, to extend a credit facility to the Borrower on the terms and
conditions of this Credit Agreement. GTA is the sole shareholder of each of
GTA GP, Inc. and GTA LP, Inc., which are the general partner and limited
partner of the Borrower, respectively. All extensions of credit to the
Borrower will inure to the benefit of the Guarantors, directly or indirectly.
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
"ADJUSTED EURODOLLAR RATE" means, with respect to any Eurodollar Loan,
for any Interest Period, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) mathematically determined by the Administrative
Agent to be equal to the quotient obtained by dividing (a) the Eurodollar
Rate for such Interest Period by (b) 1 minus the Reserve Requirement for such
Interest Period.
"ADMINISTRATIVE AGENT" means NationsBank 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.
<PAGE>
"AGENT" means either of the Administrative Agent or the Documentation
Agent and "AGENTS" shall mean the collective reference to the Administrative
Agent and the Documentation Agent.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments under this Agreement, as such amount may be reduced or modified
at any time or from time to time pursuant to the terms of this Agreement. On
the Closing Date, the Aggregate Commitment shall be One Hundred Million
Dollars ($100,000,000).
"AGREEMENT" means this Credit Agreement, as amended or modified from
time to time.
"APPLICABLE LENDING OFFICE" means, for each Lender, the "Lending
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 as the office by which its Loans are to be made
and maintained.
"AVAILABLE COMMITMENT" means, as to any Lender at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment over (b) such
Lender's Loans.
"BANK OF AMERICA" means Bank of America National Trust and Savings
Association.
"BASE RATE" means, at any time, the higher of (a) the rate per annum
equal to the rate announced by NationsBank as its "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.
"BASE RATE LOAN" means any Loan that bears interest at the Base Rate.
"BORROWER" means Golf Trust of America, L.P. in its capacity as
borrower under this Agreement.
"CLOSING DATE" means the date of this Agreement or such later Business
Day upon which each condition described in Article V shall be satisfied or
waived in all respects in a manner acceptable to the Agents, in their sole
discretion.
"COMMITMENT" means, as to any Lender, the obligation of such Lender to
make Loans to the Borrower under this Agreement in an aggregate principal
amount at any time outstanding not to exceed the amount set forth opposite
such Lender's name on SCHEDULE 1 to this Agreement, or as set forth in any
Assignment and Acceptance relating to any assignment that has become
effective pursuant to Section 13.10, as the same may be reduced or modified
at any time or from time to time pursuant to the terms of this Agreement.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment.
<PAGE>
"CONVERT," "CONVERSION," and "CONVERTED" shall refer to a conversion
pursuant to Section 3.2, 3.9 or 3.11 of a Eurodollar Loan into a Base Rate
Loan or vice versa.
"CREDIT FACILITY" means the non-revolving credit facility established
pursuant to Article II of this Agreement.
"CREDIT PARTIES" means the collective reference to the Borrower and the
Guarantors.
"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.
"DEFAULTING LENDER" shall have the meaning assigned thereto in Section
3.6.
"DOCUMENTATION AGENT" means Bank of America in its capacity as the
Documentation Agent under this Agreement, and any successor thereto appointed
pursuant to Section 12.7
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EURODOLLAR LOAN" means any Loan that bears interest at a rate based on
the Adjusted Eurodollar Rate.
"EURODOLLAR RATE" means for any Eurodollar Loan for any Interest
Period, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period. If for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period; PROVIDED, HOWEVER, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
"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.
"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" shall have the meaning assigned thereto in
Section 4.1.
"GUARANTORS" means, collectively, GTA, GTA GP and GTA LP, together with
any Subsidiaries of GTA that become Guarantors pursuant to Section 8.3.
<PAGE>
"GUARANTY" means the Guarantors' obligations set forth in Article IV.
"INTEREST PERIOD" means each period of thirty (30) days, under this
Agreement, with respect to which the Eurodollar Rate shall be determined;
PROVIDED that:
(a) each Interest Period shall commence on the date of advance of or
Conversion to any Eurodollar Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date
on which the next preceding Interest Period expires;
(b) if any Interest Period would otherwise expire on a day that is not
a Business Day, such Interest Period shall expire on the next succeeding
Business Day; PROVIDED, that if any Interest Period would otherwise expire on
a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(c) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the relevant calendar month at the end of such
Interest Period;
(d) no Interest Period shall be permitted to extend beyond the
Termination Date; and
(e) there shall be no more than seven (7) Interest Periods outstanding
at any time.
"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.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"LEVERAGE RATIO" means the ratio of Total Liabilities to Total Assets.
"LOAN" means any Loan made to the Borrower pursuant to Article II and
all such Loans collectively as the context requires.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes and
each other document, instrument and agreement executed and delivered by any
Credit Party or on behalf of such entity by its counsel in connection with
this Agreement or otherwise referred to in this Agreement or contemplated
hereby, all as may be amended, restated or otherwise modified.
"NATIONSBANK" means NationsBank, N.A., a national banking association,
and its successors.
<PAGE>
"NOTES" means the separate Notes made by the Borrower payable to the
order of each of the Lenders, substantially in the form of EXHIBIT A hereto,
evidencing the Credit Facility, 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.
"NOTICE OF PREPAYMENT" shall have the meaning assigned thereto in
Section 2.3(c).
"NOTICE OF BORROWING" shall have the meaning assigned thereto in
Section 2.2(a).
"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,
(b) all payment and other obligations owing by the Borrower to any Lender
under any Hedging Agreement and (c) 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.
"ORIGINAL TERMINATION DATE" shall have the meaning assigned thereto in
Section 2.5.
"PRIME RATE" means, at any time, the rate of interest per annum
publicly announced from time to time by NationsBank 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 NationsBank 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.
"REGISTER" shall have the meaning assigned thereto in Section 13.10.
"REQUIRED LENDERS" means, at any date, any combination of holders other
than Defaulting Lenders of at least sixty-six and two-thirds percent
(66-2/3%) of the aggregate unpaid principal amount of the Notes exclusive of
Notes held by Defaulting Lenders, or if no amounts are outstanding under the
Notes, any combination of Lenders other than Defaulting Lenders whose
Commitment Percentages would aggregate at least sixty-six and two-thirds
percent (66-2/3%) if the Commitments of each Defaulting Lender were excluded
from the Aggregate Commitment.
"RESERVE REQUIREMENT" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental,
or emergency reserves) are required to be maintained under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect
any other reserves required to be maintained by such member banks with
respect to (i) any category of
<PAGE>
liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Loans. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the effective
date of any change in the Reserve Requirement.
SECTION 1.2 AMENDED AND RESTATED CREDIT AGREEMENT. All terms used
in this Agreement and not defined herein shall have the meanings assigned to
them in the Amended and Restated Credit Agreement dated as of the 27th day of
February, 1998 by and among the Borrower, the Guarantors, the Lenders party
thereto, NationsBank, N.A., as Administrative Agent for the Lenders, and Bank
of America National Trust and Savings Association, as Documentation Agent for
the Lenders, as amended by the First Amendment to and Restatement of Amended
and Restated Credit Agreement dated as of May 1, 1998 (as so amended, the
"Amended and Restated Credit Agreement").
SECTION 1.3 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 1.4 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 or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(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 LOANS. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Loans to the Borrower from
time to time from the Closing Date through, but not including, the
Termination Date as requested by the Borrower in accordance with the terms of
Section 2.2; PROVIDED, that (a) the aggregate principal amount of all
outstanding Loans (after giving effect to any amount requested) shall not
exceed the Aggregate Commitment, (b) the principal amount of outstanding
Loans from any Lender to the Borrower shall not at any time exceed such
Lender's Commitment and (c) the Pool Value shall at all times be at least 2.0
TIMES the sum of (i) the aggregate amount of all unsecured Debt of the
Borrower PLUS (ii) the amount of the then outstanding Obligations. Each Loan
by a Lender
<PAGE>
shall be in a principal amount equal to such Lender's Commitment Percentage
of the aggregate principal amount of Loans requested on such occasion.
Amounts borrowed and repaid may not be reborrowed.
SECTION 2.2 PROCEDURE FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as EXHIBIT
B (a "Notice of Borrowing") not later than 11:00 a.m. (Charlotte time) (i) at
least two (2) Business Days before each Base Rate Loan and (ii) at least
three (3) Business Days before each Eurodollar Loan, of its intention to
borrow, specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof, and (C) whether such Loan is to be a Eurodollar Loan or a Base Rate
Loan. Notices received after 11:00 a.m. (Charlotte time) shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.
(b) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Charlotte time) on
the proposed borrowing date, each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative
Agent, such Lender's Commitment Percentage of the Loans to be made on such
borrowing date. The Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.2 in immediately available funds by crediting such proceeds to a
deposit account of the Borrower maintained with the Administrative Agent or
by wire transfer to such account as may be agreed upon by the Borrower and
the Administrative Agent from time to time. Unless the Administrative Agent
shall have received notice from a Lender that such Lender will not make
available to the Administrative Agent such Lender's Commitment Percentage of
the requested Loan, the Administrative Agent shall disburse such Lender's
Commitment Percentage of the Loans.
SECTION 2.3 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 Termination Date.
(b) MANDATORY REPAYMENTS.
(i) If at any time the outstanding principal amount of all Loans
exceeds the Aggregate Commitment or the sum of (x) the aggregate amount of
all unsecured Debt of the Borrower PLUS (y) the amount of the outstanding
Obligations exceeds forty percent (40%) of the Pool Value, the Borrower
shall repay immediately upon written notice from the Administrative Agent,
by payment to the Administrative Agent for the account of the Lenders, the
Loans in an amount equal to such excess.
<PAGE>
(ii) Each such repayment under this Section 2.3(b) shall be (x)
accompanied by any amount required to be paid pursuant to Section 3.12 of
this Agreement, together with interest accrued thereon to the date of
repayment and (y) applied FIRST to the outstanding Base Rate Loans up to
the full amount thereof and SECOND to the outstanding Eurodollar Loans up
to the full amount thereof.
(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from time to
time repay the Loans, in whole or in part, by giving the Administrative Agent
irrevocable notice in the form attached hereto as EXHIBIT C (a "Notice of
Repayment") not later than 11:00 a.m. (Charlotte time) at least three (3)
Business Days before each repayment of a Loan specifying the date and amount
of repayment, PROVIDED, HOWEVER, that the Borrower may not repay any
Eurodollar Loan on any day other than the last day of the Interest Period
applicable thereto unless such payment is accompanied by any amount required
to be paid pursuant to Section 3.12 of this Agreement. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date set forth in such notice. Partial repayments shall be in
an aggregate amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each such repayment shall be accompanied by any amount required to
be paid pursuant to Section 3.12 of this Agreement.
SECTION 2.4 NOTES. Each Lender's Loans and the obligation of the
Borrower to repay such Loans shall be evidenced by a Note executed by the
Borrower payable to the order of such Lender representing the Borrower's
obligation to pay such Lender's Commitment or, if less, the aggregate unpaid
principal amount of all Loans made and to be made by such Lender to the
Borrower under this 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 2.5 TERMINATION OF CREDIT FACILITY. The Credit Facility
shall terminate upon the earlier of (i) ninety (90) days after the Closing
Date (the "Original Termination Date") subject to any earlier termination by
the Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a)
or (ii) the payment in full of all Obligations under the Amended and Restated
Credit Agreement; PROVIDED, however, that the Borrower may extend the
Original Termination Date for up to three (3) successive periods of thirty
(30) days each by written notice given to the Administrative Agent at least
three (3) Business Days prior to the Original Termination Date, as the same
may have been previously extended pursuant to this Section 2.5 and PROVIDED
FURTHER that the Borrower's right to extend the Original Termination Date is
subject to the satisfaction of each of the following conditions precedent on
the relevant date of each extension:
(a) no material Default and no Event of Default shall have occurred
and, if so requested by the Administrative Agent, the Borrower shall so
certify to the Lenders in writing,;
(b) the placement of Debt by the Borrower and/or follow-on equity
offering by GTA in an amount sufficient to repay the Facility in full is
progressing toward
<PAGE>
completion in a manner and on a schedule reasonably satisfactory to the
Lenders, which schedule shall enable the placement and/or follow-on
equity offering to close in all events not later than the Original
Termination Date as so extended;
(c) the Borrower shall pay to the Administrative Agent, for the
account of the Lenders, a non-refundable fee equal to .05% of the
Aggregate Commitment, such fee to be payable in full upon the effective
date of each renewal;
(d) the Borrower shall have borrowed all amounts available to be
borrowed under the Amended and Restated Credit Agreement; and
(e) no material adverse change in the properties, business,
operations, prospects or condition (financial or otherwise) of the Credit
Parties shall have occurred and no event shall have occurred or condition
arisen that could reasonably be expected to have a Material Adverse
Effect.
SECTION 2.6 USE OF PROCEEDS. The Borrower shall use the proceeds
of the Loans for the purposes provided in Section 2.6 of the Amended and
Restated Credit Agreement.
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this Section
3.1, at the election of the Borrower in accordance with Article II, the
unpaid principal balance of any Loan shall bear interest at (A) the Base
Rate, or (B) the Adjusted Eurodollar Rate PLUS the Applicable Margin. The
Borrower shall select the type of interest rate applicable to any Loan at the
time a Notice of Borrowing is given pursuant to Section 2.2(a) or at the time
a Notice of Conversion/Continuation is given pursuant to Section 3.2. Any
Loan as to which the Borrower has not duly specified an interest rate as
provided immediately above shall be deemed a Base Rate Loan.
(b) APPLICABLE MARGIN. The Applicable Margin provided for in Section
3.1(a) with respect to the Eurodollar Loans (the "Applicable Margin") shall
be determined by reference to the Leverage Ratio as of the end of each fiscal
quarter, as follows:
<TABLE>
<CAPTION>
LEVERAGE RATIO APPLICABLE MARGIN PER ANNUM
-------------- ---------------------------
<S> <C>
Greater than or equal to 1.75%
.425 to 1.00
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Greater than or equal to 1.55%
.325 to 1.00 but less than
.425 to 1.00
Less than .325 to 1.00 1.35%
</TABLE>
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day (each an "Adjustment
Date") after receipt by the Administrative Agent of quarterly financial
statements for GTA and the other Credit Parties and the accompanying
Officer's Compliance Certificate setting forth the Leverage Ratio of GTA and
the other Credit Parties as of the most recent fiscal quarter end. Subject to
Section 3.1(d), in the event such financial statements and certificate of
covenant compliance are not delivered within the time required by Sections
7.1 and 7.2 of the Amended and Restated Credit Agreement, the Applicable
Margin shall be the highest Applicable Margin set forth above until the
Adjustment Date following the delivery of such financial statements and
certificate or evidence of covenant compliance, as applicable.
(c) DEFAULT RATE. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrower shall no longer have the option to request
or Convert to Eurodollar Loans, (ii) all outstanding Eurodollar Loans may at
the option of the Administrative Agent and shall at the direction of the
Required Lenders bear interest at a rate per annum which shall be two percent
(2%) in excess of the rate then applicable to Eurodollar Loans, as
applicable, until the end of the applicable Interest Period and thereafter at
a rate equal to two percent (2%) in excess of the rate then applicable to
Base Rate Loans, and (iii) all outstanding Base Rate Loans shall bear
interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans. 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.
(d) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each month,
commencing July 31, 1998, and on the Termination Date. Interest on each
Eurodollar Loan shall be payable in arrears on the last day of each
applicable Interest Period 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.
(e) 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
<PAGE>
shall apply such excess to the principal balance of the Obligations if
permitted by Applicable Law (in either event, Administrative Agent shall
advise 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 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF
LOANS. Provided that no Event of Default has occurred and is then continuing,
the Borrower shall have the option to (a) Convert at any time all or any
portion of its outstanding Base Rate Loans in a principal amount equal to
$500,000 or any whole multiple of $100,000 in excess thereof into one or more
Eurodollar Loans, and (b) upon the expiration of any Interest Period, (i)
Convert all or any part of its outstanding Eurodollar Loans in a principal
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof
into Base Rate Loans, or (ii) continue such Eurodollar Loans as Eurodollar
Loans. Whenever the Borrower desires to Convert or continue Loans as provided
immediately above, the Borrower shall give the Administrative Agent
irrevocable prior written notice in the form attached as EXHIBIT D (a "Notice
of Conversion/Continuation") not later than 11:00 a.m. (Charlotte time) three
(3) Business Days before the day on which a proposed Conversion or
continuation of such Loan is to be effective specifying (A) the Loans to be
Converted or continued, and, in the case of any Eurodollar Loan to be
Converted or continued, the last day of the Interest Period therefor, (B) the
effective date of such Conversion or continuation (which shall be a Business
Day), and (C) the principal amount of such Loans to be Converted or
continued. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
SECTION 3.3 COMMITMENT FEE. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a non-refundable fee
equal to 0.10% of the Aggregate Commitment, such fee to be paid in full on
the Closing Date. Such commitment fee shall be distributed by the
Administrative Agent to the Lenders PRO RATA in accordance with the Lenders'
respective Commitment Percentages.
SECTION 3.4 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) on the date specified for payment
under this Agreement to the Administrative Agent at the Administrative
Agent's Office for the account of the Lenders (other than as set forth below)
PRO RATA in accordance with their respective Commitment Percentages, in
Dollars, in immediately available funds and shall be 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
<PAGE>
Section 3.4 such Lender's Commitment Percentage 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 or the Issuing Lender shall be made for the account
of the Administrative Agent. Any amount payable to any Lender under Section
3.7, 3.8, 3.12 or 13.2 shall be paid to the Administrative Agent for the
account of the applicable Lender.
(b) CREDITING OF PAYMENTS AND PROCEEDS. In the event that the Borrower
shall fail to pay any of the Obligations when due and the Obligations have
been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from
the enforcement of the Obligations shall be applied first to all expenses
then due and payable by the Borrower under this Agreement, then to all
indemnity obligations then due and payable by the Borrower under this
Agreement, then to all Administrative Agent's fees then due and payable by
Borrower under this Agreement, then to all commitment and other fees and
commissions then due and payable by Borrower under this Agreement, then to
accrued and unpaid interest on the Notes, and any termination payments due
from Borrower in respect of a Hedging Agreement with any Lender (PRO RATA in
accordance with all such amounts due), and then to the principal amount of
the Notes, in that order.
SECTION 3.5 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 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
<PAGE>
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 3.5 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 3.6 NATURE OF OBLIGATIONS OF LENDERS REGARDING LOANS;
ASSUMPTION BY THE ADMINISTRATIVE AGENT. The obligations of the Lenders under
this Agreement to make the Loans are several and are not joint or joint and
several. Unless the Administrative Agent shall have received notice from a
Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
amount to be borrowed on such date (which notice shall not release such
Lender of its obligations under this Agreement), the Administrative Agent may
assume that such Lender has made such portion available to the Administrative
Agent on the proposed borrowing date in accordance with Section 2.2(b) and
the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If such amount
is made available to the Administrative Agent on a date after such borrowing
date, such Lender shall pay to the Administrative Agent on demand an amount,
until paid, equal to the product of (a) the amount of such Lender's
Commitment Percentage of such borrowing, TIMES (b) the daily average Federal
Funds Rate during such period as determined by the Administrative Agent,
TIMES (c) a fraction the numerator of which is the number of days that elapse
from and including such borrowing date to the date on which such Lender's
Commitment Percentage of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 360. A
certificate of the Administrative Agent with respect to any amounts owing
under this Section 3.6 shall be conclusive, absent manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at
the Adjusted Eurodollar Rate, on demand, from the Borrower. The failure of
any Lender (a "Defaulting Lender") to make its Commitment Percentage of any
Loan available shall not relieve it or any other Lender of its obligation, if
any, under this Agreement to make its Commitment Percentage of such Loan
available to Borrower on such borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its Commitment
Percentage of such Loan available on the borrowing date.
SECTION 3.7 INDEMNITY. The Borrower hereby indemnifies each of
the Lenders against any reasonable and actually incurred loss or expense
which arises or is directly attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by the Borrower to make
any payment when due of any amount due under this Agreement in connection
with a Loan, (b) due to any failure of the Borrower to borrow on a date
specified therefor in a Notice of Borrowing, or (c) due to any payment or
prepayment of any Loan on a date other than the date specified for such
payment in the applicable Notice of Prepayment; provided, however, the
Borrower shall have no such obligation to any Lender who is a Defaulting
Lender. The amount of such reasonable and actually incurred loss or expense
shall be determined, in the applicable Lender's sole reasonable discretion,
based upon the condition
<PAGE>
that such Lender funded its Commitment Percentage of the Loans in the London
interbank market and using any reasonable attribution or averaging methods
which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts
necessary to compensate such Lender shall be forwarded to the Borrower
through the Administrative Agent and shall be conclusively presumed to be
correct save for manifest error.
SECTION 3.8 INCREASED COST AND REDUCED RETURN.
(a) If, after the date of this Agreement, the adoption of any
applicable law, rule, or regulation, or any change in any applicable law,
rule, or regulation, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank, or comparable agency; excepting, however, any such change
occasioned by such Lender's default or non-compliance with such applicable
rules:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar Loans,
its Note, or its obligation to make Eurodollar Loans, or change the basis
oftaxation of any amounts payable to such Lender (or its Applicable
Lending Office) under this Agreement or its Note in respect of any
Eurodollar Loans (other than taxes imposed on the overall net income of
such Lender by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Adjusted Eurodollar Rate)
relating to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitment of such Lender under
this Agreement; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or the London interbank market any other condition affecting this
Agreement or its Note or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Eurodollar
Loans or to reduce any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or its Note with respect to
any Eurodollar Loans, then the Borrower shall pay to such Lender on demand
(and a full written explanation for the increase) such amount or amounts
solely applicable to its Loan or in relationship of its Loan to other loans
of such Lender as will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by the Borrower under this
Section 3.8, the Borrower may, in its sole discretion, by notice to such
Lender (with a copy to the Administrative Agent), suspend the obligation of
such Lender to make or continue Eurodollar Loans until the event or condition
giving rise to
<PAGE>
such request ceases to be in effect; PROVIDED that such suspension shall not
affect the right of such Lender to receive the compensation so requested, if
applicable, subject to the foregoing conditions and caveats.
(b) If, after the date of this Agreement, any Lender shall have
determined that the adoption 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.
(c) Each Lender shall promptly notify the Borrower and the
Administrative Agent in writing of any event of which it has knowledge,
occurring after the date of this Agreement, which will entitle such Lender to
compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming compensation
under this Section shall promptly furnish to the Borrower and the
Administrative Agent a written statement setting forth the additional amount
or amounts to be paid to it under this Agreement which (subject to the terms
of this Agreement) shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
SECTION 3.9 LIMITATION ON TYPES OF LOANS. If on or prior to the
first day of any Interest Period the Administrative Agent reasonably
determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period then
the Administrative Agent shall give the Borrower prompt written notice
thereof specifying the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans or continue Eurodollar Loans, and the Borrower
shall, at its election, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, prepay such Eurodollar Loans,
or Convert such Eurodollar Loans into Base Rate Loans, or prepay the
Obligations in full and terminate this Agreement.
SECTION 3.10 ILLEGALITY. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans under
this Agreement, then such Lender shall promptly notify the Borrower thereof
in writing and such Lender's obligation to make or continue Eurodollar Loans
shall be suspended until such time as such Lender may again make, maintain,
and fund Eurodollar Loans (in which case the provisions of Section 3.11 shall
be applicable).
<PAGE>
SECTION 3.11 TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make or continue Eurodollar Loan shall be suspended pursuant to
Section 3.9 or 3.10 of this Agreement and unless such Eurodollar Loans are
paid, until such Lender gives prior written notice to the Borrower as
provided below that the circumstances specified in Section 3.9 or 3.10 of
this Agreement no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted into Base Rate Loans, all payments and prepayments of principal
that would otherwise be applied to the Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by such
Lender as Eurodollar Loans shall be made or continued instead as Base Rate
Loans, and all Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall be Converted instead into (or shall remain as) Base
Rate Loans.
If such Lender gives written notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in Section 3.9 or 3.10
of this Agreement no longer exist (which such Lender agrees to do promptly
upon such circumstances ceasing to exist) such Lender's Base Rate Loans may
be Converted to Eurodollar Loans.
SECTION 3.12 COMPENSATION. Upon the request of any Lender, the
Borrower shall pay to such Lender such amount or amounts as shall be
sufficient (in the reasonable, good faith opinion of such Lender) to
compensate it for any reasonable and actually incurred loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for
any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 11.2) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article V
to be satisfied) to borrow or prepay a Eurodollar Loan on the date for
such borrowing or prepayment specified in the relevant Notice of Borrowing
or Notice of Prepayment under this Agreement.
SECTION 3.13 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 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 Lending 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 any other Loan Document to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as necessary so
that after making
<PAGE>
all required deductions (including deductions applicable to additional sums
payable under this Section 3.13) 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 or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Agreement by the Borrower 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 3.13) 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 reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (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 or a reduced rate of 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 3.13(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 3.13(a) or 3.13(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
Lender shall reasonably request to assist such Lender to recover such Taxes.
<PAGE>
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 3.13, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending 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 3.13 shall survive the
termination of the Commitments and the payment in full of the Notes.
ARTICLE IV
GUARANTY
SECTION 4.1 GUARANTY OF OBLIGATIONS OF BORROWER. Each Guarantor
hereby unconditionally guaranties 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").
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:
<PAGE>
(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 and the termination of
the Aggregate Commitment. 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.
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
<PAGE>
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 4.3, 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 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;
<PAGE>
(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 Guaranty.
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.
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.
<PAGE>
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, under the 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 OF CLOSING AND BORROWING
SECTION 5.1 CLOSING. The closing shall take place at the offices
of Kennedy Covington Lobdell & Hickman, L.L.P. in Charlotte, North Carolina
at 10:00 a.m. on July 9, 1998 or at such other place and on such other date
as the parties hereto shall mutually agree.
SECTION 5.2 CONDITIONS TO CLOSING AND INITIAL LOAN. The
obligation of the Lenders to close this Agreement and to make the initial
Loan is subject to the satisfaction of each of the following conditions:
(a) EXECUTED LOAN DOCUMENTS. This Agreement and the Notes, 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 and no Default or Event of Default shall exist thereunder, and the
Borrower and each other Credit Party, as applicable, shall have delivered
original counterparts thereof to the Administrative Agent.
(b) 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, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has
occurred 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
<PAGE>
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 the
Agreement of Limited Partnership of the Borrower and all amendments
thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of formation; 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; that there has been no change in any of the
items delivered previously to the Administrative Agent pursuant to
Articles V and VI of the Amended and Restated Credit Agreement and
that the Lenders may rely on such prior deliveries in making any
Loan under this Agreement; 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 the articles of
incorporation of such Guarantor and all amendments thereto,
certified as of a recent date by the appropriate Governmental
Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of such Guarantor
as in effect on the date of such certification; 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; that there has been no change in any of the items
delivered previously to the Administrative Agent pursuant to
Articles V and VI of the Amended and Restated Credit Agreement and
that the Lenders may rely upon such prior deliveries in making any
Loan under this Agreement; 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) POOL VALUATION CERTIFICATE. The Administrative Agent
shall have received a Pool Valuation Certificate properly completed
and executed by the Borrower, setting forth the Pool Value, the
amount of which shall be equal to or greater than 2.00 times the sum
of (A) the aggregate amount of all unsecured Debt of the Borrower
PLUS (B) the amount of the outstanding Obligations.
(v) OPINIONS OF COUNSEL. The Administrative Agent shall have
received favorable opinions of counsel to the Borrower and the
Guarantors addressed to the Administrative Agent and the Lenders
with respect to the Borrower and the Guarantors, the Loan Documents
and such other matters as the Lenders shall reasonably request.
(c) CONSENTS; DEFAULTS.
<PAGE>
(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.
(d) PAYMENT OF FEES. There shall have been paid by the Borrower to
the Administrative Agent and the Lenders the fees set forth or referenced
in Section 3.3 and any other accrued and unpaid fees or commissions due
under this Agreement (including, without limitation, legal fees and
expenses), and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes,
fees and other charges in connection with the execution, delivery,
recording, filing and registration of any of the Loan Documents.
(e) MISCELLANEOUS.
(i) NOTICE OF BORROWING. The Administrative Agent shall have
received a Notice of Borrowing from the Borrower and identification
of the account or accounts into which the proceeds of such Loans are
to be disbursed.
(ii) 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 substance to the Lenders. The Lenders shall
have received copies of all other instruments and other evidence as
the Lender 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.
(iii) DUE DILIGENCE AND OTHER DOCUMENTS. The Borrower shall
have delivered to the Administrative Agent 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.
<PAGE>
SECTION 5.3 CONDITIONS TO ALL LOANS. The obligation of the Lenders
to make any Loan is subject to the satisfaction of the following conditions
precedent on the relevant borrowing date:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VI shall be true and
correct in all material respects, and shall be deemed to be remade, on and
as of such borrowing date with the same effect as if made on and as of
such date (except for those which expressly relate to an earlier date).
(b) NO EXISTING DEFAULT. No Default or Event of Default shall have
occurred and be continuing under this Agreement on the borrowing date with
respect to such Loan or after giving effect to the Loans to be made on
such date.
(c) OFFICER'S COMPLIANCE CERTIFICATE; ADDITIONAL DOCUMENTS. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or
other item of information reasonably requested by it.
(d) AVAILABILITY. After giving effect to the requested Loan, the
outstanding Loans will not exceed the amount available pursuant to Section
2.1.
(e) POOL VALUATION CERTIFICATE. The Administrative Agent shall have
received a Pool Valuation Certificate properly completed and executed by
the Borrower, setting forth the Pool Value, the amount of which shall be
equal to or greater than 2.0 times the sum of (i) the amount of all
Obligations outstanding after giving effect to the requested Loan PLUS
(ii) any other unsecured Debt of the Borrower then outstanding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VI of the Amended and
Restated Credit Agreement are true and correct in all material respects and
are incorporated herein by this reference and deemed to be remade, on and as
of the date of this Agreement with the same effect as if made on and as of
such date (except for those which expressly relate to an earlier date) and
set forth herein in full.
SECTION 6.2 NO MATERIAL ADVERSE CHANGE. Since the date of the
Amended and Restated Credit Agreement there has been no material adverse
change in the properties, business, operations, prospects or condition
(financial or otherwise) of the Credit Parties, and no event has occurred or
condition arisen that could reasonably be expected to have a Material Adverse
Effect.
<PAGE>
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 of this Agreement, 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 all of the financial statements and projections required to
be delivered pursuant to the terms of Article VII of the Amended and Restated
Credit Agreement.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, 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 COMPLIANCE WITH AMENDED AND RESTATED CREDIT
AGREEMENT. Comply in all respects in a timely manner with all of the
affirmative covenants set forth in Section 3.14 and Article VIII of the
Amended and Restated Credit Agreement.
SECTION 8.2 DEBT PLACEMENT/EQUITY OFFERING. Use its best efforts
to complete the placement of Debt by the Borrower and/or follow-on equity
offering by GTA in an amount sufficient to repay the Facility in full not
later than the Original Termination Date, as such Original Termination Date
may be extended pursuant to the terms of this Agreement.
SECTION 8.3 SUPPLEMENTAL GUARANTORS. Concurrently with the
creation or acquisition of any Subsidiary (a) cause it to execute and deliver
to the Administrative Agent a supplement to the Guaranty substantially in the
form of EXHIBIT G hereto, and (b) cause to be delivered to the Administrative
Agent such other documents as the Administrative Agent or Required Lenders
shall reasonably request in connection therewith, including, without
limitation, officers' certificates, financial statements, opinions of
counsel, resolutions, charter documents, certificates of existence and
authority to do business and any other closing certificates and documents
described in Section 5.2.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, 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 comply in all
<PAGE>
respects in a timely manner with all of the financial covenants set forth in
Article IX of the Amended and Restated Credit Agreement.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
set forth in Section 13.11 of this Agreement, the Credit Parties will comply
in all respects in a timely manner with all of the negative covenants set
forth in Article X of the Amended and Restated Credit Agreement.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. 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 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) DEBT PLACEMENT/EQUITY OFFERING. Within sixty (60) days following
the Closing Date, the Borrower shall fail to engage one or more
institutions to be selected by the Borrower and to be reasonably
acceptable to the Lenders to handle the placement of the Borrower's Debt
and/or follow-on equity offering by GTA.
(e) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. Any Credit Party
shall default in the performance or observance of any covenant or
agreement contained in Article VIII or IX of this Agreement.
<PAGE>
(f) 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.
(g) CROSS-DEFAULT. Any Event of Default shall exist under the
Amended and Restated Credit Agreement.
SECTION 11.2 REMEDIES. Upon the occurrence 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, by
notice to the Borrower:
(a) ACCELERATION; TERMINATION OF FACILITIES. 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, and terminate the Credit Facility and any right of the
Borrower to request borrowings hereunder; PROVIDED, that upon the
occurrence of an Event of Default specified in Section 11.1(k) or (l) of
the Amended and Restated Credit Agreement, the Credit Facility shall be
automatically terminated and all Obligations shall automatically become
due and payable.
(b) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement (including, without
limitation, the Guaranty), the other Loan Documents and Applicable Law, in
order to satisfy all of the Borrower's 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 Loan Documents or that may now or
hereafter exist in 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 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
<PAGE>
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 AGENTS
SECTION 12.1 APPOINTMENT, POWERS, AND IMMUNITIES.
(a) Each Lender hereby irrevocably appoints and authorizes each of
NationsBank and Bank of America to act as its Administrative Agent and
Documentation Agent, respectively, under this Agreement and the other Loan
Documents with such powers and discretion as are specifically and
respectively delegated to each 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 the entire Aggregate Commitment were held by the
Administrative Agent in its own portfolio. Each Agent shall forward to the
Lenders all documents received by such 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. The
Documentation Agent has no duties or responsibilities in connection with the
administration of the Credit Facility or otherwise except as otherwise
expressly provided in this Agreement.
(c) Neither 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 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 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 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 be required to initiate or conduct any
litigation or collection proceedings under any Loan Document; and (e) shall
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 such Agent to
any other Lenders contained herein. Each 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.
<PAGE>
SECTION 12.2 RELIANCE BY AGENTS. Each 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 such
Agent. The Agents may deem and treat the payee of any Note as the holder
thereof for all purposes of this Agreement unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 13.10 of this Agreement. As to any matters not expressly provided for
by this Agreement, neither Agent shall 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, HOWEVER, that neither Agent shall be
required to take any action that exposes such 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. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
such 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 Agents, 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 its Commitment and
the Loans made by it, each 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 Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include each Agent in its individual
capacity. Each Agent (and any successor acting as 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 Agent, and each Agent (and any
successor acting as 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.
<PAGE>
SECTION 12.5 INDEMNIFICATION. The Lenders agree to indemnify each
Agent (to the extent not reimbursed under Section 3.7 of this Agreement, but
without limiting the obligations of the Borrower under such Section) ratably
in accordance with their respective Commitments, 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 such
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 such 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 such Agent to any Lenders contained
herein. Without limitation of the foregoing, each Lender agrees to reimburse
each 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 such
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 Agents 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 to make Loans
hereunder and to issue or participate in Letters of Credit hereunder and that
it will, independently and without reliance upon the Agents 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 Agents under this Agreement, the Agents 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 Agents or
any of their Affiliates.
SECTION 12.7 RESIGNATION; REMOVAL OF AGENTS; SUCCESSOR AGENTS.
(a) RESIGNATION OF AGENT. Either Agent may resign at any time by giving
prior written notice thereof to the Lenders, the remaining Agent (if any) and
the Borrower. Upon any such resignation the remaining Agent (if any) shall
have the right to succeed the resigning Agent. If the remaining Agent is
unwilling or unable for any reason to succeed the resigning Agent, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders or
neither such appointee nor the remaining Agent shall have accepted such
appointment or succession within thirty (30) days after the retiring Agent's
giving of notice of resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent which shall be an Eligible Assignee
having total assets of at least $25,000,000,000.
<PAGE>
(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 Lenders
whose Commitment Percentages equal sixty six and two thirds percent (66.67%)
of the Aggregate Commitment exclusive of the Administrative Agent's
Commitment, if (i) the Administrative Agent's Commitment is less than twenty
million dollars ($20,000,000) and no Event of Default has occurred and is
continuing or (ii) 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) REMOVAL OF DOCUMENTATION AGENT. The Lenders may remove the
Documentation Agent hereunder and appoint a successor Documentation Agent
upon not less than thirty (30) days' prior written notice signed by Lenders
whose Commitment Percentages equal sixty six and two thirds percent (66.67%)
of the Aggregate Commitment exclusive of the Documentation Agent's
Commitment, if (i) the Documentation Agent's Commitment is less than twenty
million dollars ($20,000,000) and no Event of Default has occurred and is
continuing or (ii) the Documentation 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.
(d) SUCCESSOR AGENTS. Upon the acceptance of any appointment as 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 Agent upon written notice thereof to Borrower, and the
retiring 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 Agent's
resignation or removal under this Agreement as 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 Agent.
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.
<PAGE>
(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.
c/o GTA
14 North Adgers Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II and
Scott D. Peters
Telephone No.: 803/723-4653
Telecopy No.: 803/723-0479
With copies to: O'Melveny & Myers LLP
275 Battery Street, 26th Floor
San Francisco, California 94105
Attention: Peter T. Healy, Esq.
Telephone No.: (415) 984-8833
Telecopy No.: (415) 984-8701
If to GTA: Golf Trust of America, Inc.
c/o GTA
14 North Adgers Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II and
Scott D. Peters
Telephone No.: 803/723-4653
Telecopy No.: 803/723-0479
If to GTA GP: GTA GP, Inc.
c/o GTA
14 North Adgers Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II and
Scott D. Peters
Telephone No.: 803/723-4653
Telecopy No.: 803/723-0479
If to GTA LP: GTA LP, Inc.
c/o GTA
14 North Adgers Wharf
Charleston, South Carolina 29401
Attention: W. Bradley Blair, II and
Scott D. Peters
Telephone No.: 803/723-4653
Telecopy No.: 803/723-0479
<PAGE>
If to NationsBank as NationsBank, N.A.
Administrative Agent Commercial Banking
or as Issuing Lender: 2501 Oak Street, 2nd Floor
Myrtle Beach, South Carolina 29577-0807
Attention: Dale Zeglin
Telephone No.: (803) 946-3259
Telecopy No.: (803) 946-3211
If to Bank of America as Bank of America National Trust
Documentation Agent: and Savings Association
231 South LaSalle Street, 12th Floor
Chicago, Illinois 60697
Attention: Mark Lariviere
Telephone No.: (312) 828-2513
Telecopy No.: (312) 974-4970
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 and at
which Loans will be disbursed.
SECTION 13.2 EXPENSES; INDEMNIFICATION. (a) The Borrower agrees to
pay on demand all reasonably and actually incurred costs and expenses of the
Agents, NationsBanc Capital Markets, Inc. and the Lenders in connection with
the syndication, preparation, execution, delivery, administration,
modification, and amendment 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 Agents,
NationsBanc Capital Markets, Inc. and the Lenders (including the cost of
internal counsel) with respect thereto and with respect to advising the
Agents or any Lender as to their rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all reasonably and
actually incurred costs and expenses of the Agents and the Lenders, if any
(including, without limitation, reasonable and actually incurred attorneys'
fees and expenses and the reasonably and actually incurred cost of internal
counsel), in connection with the enforcement (whether through negotiations,
legal proceedings, or otherwise) of the Loan Documents and the other
documents to be delivered under this Agreement.
(b) The Borrower agrees to indemnify and hold harmless the Agents 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
<PAGE>
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 the Borrower, 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 either 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.
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, 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. The Borrower 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. The Borrower hereby irrevocably consents to the service of a
summons and
<PAGE>
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 the Borrower 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 THE BORROWER HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY 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) The Borrower 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, the Borrower 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 Borrower (on behalf of itself and
its Subsidiaries) 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.
<PAGE>
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
GTA, the Borrower or any Subsidiary thereof 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 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, its Note, and its Commitment); PROVIDED, HOWEVER, that
(i) so long as no Default or Event of Default has occurred and is
continuing, (A) NationsBank's Commitment shall not be less than
$20,000,000 and (B) Bank of America' Commitment shall not be less than
$20,000,000 and PROVIDED, FURTHER, that NationsBank and Bank of America
shall promptly notify each of the other Lenders in writing if its
Commitment is less than $20,000,000;
(ii) each such assignment shall be to an Eligible Assignee;
(iii) 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;
(iv) 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 the Note;
(v) 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 F hereto, 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
(vi) 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,
<PAGE>
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 3.13.
(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 Commitment of, and principal amount of the Loans owing
to, each Lender from time to time (the "Register"). The entries in the
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 Administrative 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 any 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 F 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 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 Commitment and 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 yield protection provisions contained in
Article III and the right of set-off contained in Section 3.5, 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 decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note or increasing the Aggregate Commitment.
(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 Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued
<PAGE>
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 Borrower or
any of its Subsidiaries 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 either
of the Agents are affected thereby, by the Agents); PROVIDED that no such
amendment or waiver shall, unless signed by all the Lenders (other than
Defaulting Lenders), (i) increase the Commitments of the Lenders, (ii) extend
the time of the obligation of the Lenders to make Loans, (iii) reduce the
principal of or rate of interest on any Loan or any fees or other amounts
payable under this Agreement, (iv) postpone any date fixed for the payment of
any scheduled installment of principal of or interest on any Loan or
Reimbursement Obligation or any fees or other amounts payable hereunder or
for termination of any Commitment, (v) change the percentage of the
Commitments or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders, the Agents or any of them
to take any action under this Section or any other provision of this
Agreement, (vi) release any Guarantor, (vii) modify any provision of Article
IX, (viii) modify the provisions of Section 10.1 of the Amended and Restated
Credit Agreement or (ix) modify the provisions of Section 10.3 of the Amended
and Restated Credit Agreement.
SECTION 13.12 PERFORMANCE OF DUTIES. The Borrower's obligations
under this Agreement and each of the Loan Documents shall be performed by the
Borrower 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 Agents and any
Persons designated by the Agents 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 or the Credit Facility has not been terminated.
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 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
<PAGE>
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 TERM OF AGREEMENT. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied
in full. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination.
<PAGE>
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.
[CORPORATE SEAL] GOLF TRUST OF AMERICA, L.P., a Delaware
limited partnership
By: GTA, GP, Inc., a Maryland corporation,
its general partner
By:
----------------------------------------
W. Bradley Blair, II
Its Chief Executive Officer
and President
[CORPORATE SEAL] GOLF TRUST OF AMERICA, INC., a Maryland
corporation
By:
----------------------------------------
W. Bradley Blair, II
Its Chief Executive Officer
and President
[CORPORATE SEAL] GTA GP, INC., a Maryland corporation
By:
----------------------------------------
W. Bradley Blair, II
Its Chief Executive Officer
and President
[CORPORATE SEAL] GTA LP, INC., a Maryland corporation
By:
----------------------------------------
W. Bradley Blair, II
Its Chief Executive Officer
and President
<PAGE>
NATIONSBANK, N.A., as Administrative Agent
and Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation Agent
and Lender
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE>
SCHEDULE 1: LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
COMMITMENT
AND COMMITMENT
LENDER PERCENTAGE
- ------ --------------
<S> <C>
NationsBank N.A. $50,000,000
2501 Oak Street, 2nd Floor 50%
Myrtle Beach, South Carolina 29577-0807
Attention: Dale Zeglin
Telephone No.: (803) 946-3259
Telecopy No.: (803) 946-3211
Bank of America, National Trust $50,000,000
and Savings Association 50%
231 South LaSalle Street
12th Floor
Chicago, Illinois 60697
Attention: Mark Lariviere
Telephone No.: (312) 828-2513
Telecopy No.: (312) 974-4970
</TABLE>
<PAGE>
EXHIBIT A
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF NOTE
$__________ _______________, 1998
FOR VALUE RECEIVED, the undersigned, GOLF TRUST OF AMERICA, L.P., a
Delaware limited partnership (the "Borrower"), hereby promises to pay to the
order of ______________________ (the "Bank"), at the times, at the place and in
the manner provided in the Credit Agreement hereinafter referred to, the
principal sum of up to _____________ Dollars ($__________), or, if less, the
aggregate unpaid principal amount of all Loans disbursed by the Bank under the
Credit Agreement referred to below, together with interest at the rates as in
effect from time to time with respect to each portion of the principal amount
hereof, determined and payable as provided in Article III of the Credit
Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, dated as of July ___, 1998 (as amended,
restated or otherwise modified, the "Credit Agreement"), by and among the
Borrower, Golf Trust of America, Inc., GTA GP, Inc. and GTA LP, Inc., as
Guarantors, the lenders (including the Bank) who are or may become party thereto
(collectively, the "Lenders"), NationsBank, N.A., as Administrative Agent for
the Lenders, and Bank of America, National Trust and Savings Association, as
Documentation Agent for the Lenders. The Credit Agreement contains, among other
things, provisions for the time, place and manner of payment of this Note, the
determination of the interest rate borne by and fees payable in respect of this
Note, acceleration of the payment of this Note upon the happening of certain
stated events and the mandatory repayment of this Note under certain
circumstances.
The Borrower agrees to pay on demand, in accordance with the terms of the
Credit Agreement, all costs of collection, including reasonable attorneys' fees,
if any part of this Note, principal or interest, is collected after maturity
with the aid of an attorney.
<PAGE>
Presentment for payment, notice of dishonor, protest and notice of protest
are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA AND SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NORTH
CAROLINA.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed under
seal by a duly authorized officer of its General Partner, all as of the day and
year first above written.
GOLF TRUST OF AMERICA, L.P.
[CORPORATE SEAL] By: GTA GP, Inc., its General Partner
By:
---------------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
<PAGE>
EXHIBIT B
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF NOTICE OF BORROWING
NationsBank, N.A., as Administrative Agent
Commercial Banking
2501 Oak Street, 2nd Floor
Myrtle Beach, South Carolina 29577-0807
Attention: Dale C. Zeglin
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you by Golf Trust
of America, L.P. (the "Borrower") under Section 2.2(a) of the Credit
Agreement, dated as of July 9, 1998 (as amended, restated or otherwise
modified, the "Credit Agreement"), by and among the Borrower, Golf Trust of
America, Inc., GTA GP, Inc. and GTA LP, Inc., as Guarantors, the lenders who
are or may become party thereto (collectively, the "Lenders"), NationsBank,
N.A., as Administrative Agent for the Lenders, and Bank of America, National
Trust and Savings Association as Documentation Agent for the Lenders.
1. The Borrower hereby requests that the Lenders make a [Eurodollar] [Base
Rate] Loan in the aggregate principal amount of ___________________ (the
"Loan").(1)
2. The Borrower hereby requests that the Loan be made on the following
Business
- ------------------------
(1) Complete with an amount in compliance with Section 2.2(a) of the Credit
Agreement.
<PAGE>
Day: _____________________.(2)
3. $________________ of the Loan shall be used to finance the purchase of
golf courses and $________________ of the Loan proceeds shall be used for
working capital and general corporate requirements.
4. The principal amount of all Loans outstanding as of the date hereof
(including the requested Loan) does not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.
5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing
this ____ day of ______________, ______.
GOLF TRUST OF AMERICA, L.P.
By: GTA GP, Inc., its General Partner
By:
-----------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
- ------------------------
(2) This date should be no earlier than two (2) Business Days after delivery of
this Notice for a Base Rate Loan and no earlier than three (3) Business
Days after delivery of this Notice for a Eurodollar Loan.
<PAGE>
EXHIBIT C
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF NOTICE OF REPAYMENT
NationsBank, N.A., as Agent
Commercial Banking
2501 Oak Street, 2nd Floor
Myrtle Beach, South Carolina 29577-0807
Attention: Dale C. Zeglin
Ladies and Gentlemen:
This irrevocable Notice of Repayment is delivered to you by Golf Trust of
America, L.P. (the "Borrower"), under Section 2.3(b) of the Credit Agreement,
dated as of July 9, 1998 (as amended, restated or otherwise modified, the
"Credit Agreement"), by and among the Borrower, Golf Trust of America, Inc., GTA
GP, Inc. and GTA LP, Inc., as Guarantors, the lenders who are or may become
party thereto (collectively, the "Lenders"), NationsBank, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent"), and Bank of
America, National Trust and Savings Association, as Documentation Agent for the
Lenders.
1. The Borrower hereby provides notice to the Administrative Agent that
the Borrower shall repay the Loans in the following amount: _________________.
2. Such Loan(s) to be repaid are [Base Rate] [Eurodollar] Loan(s).
<PAGE>
3. The Borrower shall repay such Loan(s) on the following Business Day:
_______________.(1)
4. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment
this ____ day of ________________, ___________.
GOLF TRUST OF AMERICA, L.P.
By: GTA GP, Inc., its General Partner
By:
---------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
- ------------------------
(1) This date should be no earlier than three (3) Business Days after the
delivery of this Notice.
<PAGE>
EXHIBIT D
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF NOTICE OF CONVERSION/CONTINUATION
NationsBank, N.A., as Agent
Commercial Banking
2501 Oak Street, 2nd Floor
Myrtle Beach, South Carolina 29577-0807
Attention: Dale C. Zeglin
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you by Golf Trust of America, L.P. (the "Borrower") under Section
3.2 of the Credit Agreement, dated as of July 9, 1998 (as amended, restated or
otherwise modified, the "Credit Agreement"), by and among the Borrower, Golf
Trust of America, Inc., GTA GP, Inc. and GTA LP, Inc., as Guarantors, the
lenders referred to therein (collectively, the "Lenders"), NationsBank, N.A., as
Administrative Agent for the Lenders, and Bank of America, National Trust and
Savings Association, as Documentation Agent for the Lenders.
1. This Notice of Conversion/Continuation is submitted for the purpose of:
(Complete applicable information.)
(a) [Converting] [continuing] a ___________ Loan [into] [as]
a ____________ Loan.(1)
- ------------------------
(1) Delete the bracketed language and insert "Base Rate", or "Eurodollar", as
applicable, in each blank.
<PAGE>
(b) The aggregate outstanding principal balance of such Loan is
$_______________.
(c) The last day of the current Interest Period for such Loan is
___________.(2)
(d) The principal amount of such Loan to be [converted]
[continued] is $_______________.(3)
(e) The requested effective date of the [conversion] [continuation]
of such Loan is _______________.(4)
2. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Loan requested herein.
3. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ____ day of ___________________, _________.
GOLF TRUST OF AMERICA, L.P.
By: GTA GP, Inc., its General Partner
By:
---------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
- ------------------------
(2) Insert applicable date for any Eurodollar Loan being converted or continued
(3) Complete with an amount in compliance with Section 3.2 of the Credit
Agreement
(4) This date should be at least three (3) Business Days after the delivery of
this Notice.
<PAGE>
EXHIBIT E
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of GOLF TRUST OF AMERICA, L.P., a Delaware
limited partnership (the "Borrower"), and GOLF TRUST OF AMERICA, INC., a
Maryland corporation, GTA GP, INC., a Maryland corporation, and GTA LP, INC., a
Maryland corporation (each a "Guarantor" and, together with the Borrower, the
"Credit Parties"), hereby certify to the Agents and Lenders as follows:
1. This Officer's Compliance Certificate is delivered to you pursuant to
Article VII of the Credit Agreement, dated as of July 9, 1998 (as amended,
restated or otherwise modified, the "Credit Agreement"), by and among the
Borrower, the Guarantors, the lenders who are or may become party thereto
(collectively, the "Lenders"), and NATIONSBANK, N.A., as the Administrative
Agent for the Lenders, and BANK OF AMERICA, NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent for the Lenders (the "Agents"). Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
2. Each of the undersigned has reviewed the financial statements of the
Credit Parties dated as of ___________, 199_ and for the fiscal quarter then
ended (the "Reference Date") and such statements fairly present the financial
condition of the Credit Parties as of the dates indicated and the results of
its operations and cash flows for the period indicated.
3. Each of the undersigned has reviewed the terms of the Credit Agreement,
the Notes and the related Loan Documents and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the transactions
and the condition of the Credit Parties during the
<PAGE>
accounting period covered by the financial statements referred to in
Paragraph 2 above. Such review has not disclosed the existence during or at
the end of such accounting period of any condition or event that constitutes
a Default or an Event of Default, nor does any of the undersigned have any
knowledge of the existence of any such condition or event as at the date of
this Certificate.
4. The Leverage Ratio is ______ to 1.00 and therefore the
Applicable Margin is ___%.
5. The Credit Parties are in compliance with the covenants contained in
Article IX of the Credit Agreement as shown on SCHEDULE 1 and the Credit Parties
are in compliance with the other covenants and restrictions contained in
Articles VIII and X of the Credit Agreement.
6. The Gross Golf Revenues of each Eligible Property for the two-quarter
period ending on the Reference Date are at least 85% of the Gross Golf Revenues
of such Eligible Property for the same two-quarter period during the immediately
preceding year, as shown on SCHEDULE 2.
7. No operator of any Eligible Property is more than thirty days
delinquent in its required payments to the Borrower under the related
Participating Lease or any other relevant agreement between such operator and
the Borrower.
8. The aggregate outstanding amount of loans permitted under Section 10.11
of the Amended and Restated Credit Agreement is $__________________, which
amount does not exceed 10% of Total Assets.
WITNESS the following signatures as of ____________________, 1998.
GOLF TRUST OF AMERICA, L.P.
By: GTA, GP, Inc., its general partner
By:
--------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
GOLF TRUST OF AMERICA, INC.
By:
--------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
<PAGE>
GTA GP, INC.
By:
--------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
GTA LP, INC.
By:
--------------------------------
W. Bradley Blair, II
Chief Executive Officer
and President
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
DETERMINATION OF COMPLIANCE WITH
FINANCIAL COVENANTS
<TABLE>
A. MINIMUM TANGIBLE NET WORTH
<S> <C> <C>
1. The sum of the following as of the immediately preceding fiscal
quarter end:
a. $185,000,000 $185,000,000
b. PLUS 80% of aggregate net cash proceeds
from the issuance of or offering of
capital stock after the Closing Date
of the Amended and Restated Credit
Agreement $_______________
c. Minimum Tangible Net Worth
(add lines 1.a and 1.b) $_______________
2. Actual Tangible Net Worth
as of such date $_______________
B. LEVERAGE RATIO
1. Total Liabilities as of the immediately
preceding fiscal quarter end $_______________
2. Total Assets as of the immediately
preceding fiscal quarter end $_______________
3. Ratio of Total Liabilities to Total Assets
(divide line 1 by line 2) _____________
4. Maximum Permitted Ratio 0.50 to 1.00
<PAGE>
C. MINIMUM INTEREST COVERAGE RATIO
1. EBITDA for the immediately preceding quarter $_______________
2. Interest Expense for
such quarter $_______________
3. Interest Coverage Ratio
(divide line 1 by line 2) _____________
4. Minimum Interest Coverage Ratio 2.50 to 1.00
D. MINIMUM DEBT SERVICE COVERAGE RATIO
1. EBITDA for the immediately preceding quarter $_______________
2. Debt Service for such quarter
a. Interest Expense for
such quarter $_______________
b. PLUS, principal payments of Debt
for such quarter $_______________
c. Debt Service (add lines 2.a and 2.b) $_______________
3. Debt Service Coverage Ratio
(divide line 1 by line 2.c) _____________
4. Minimum Debt Service Coverage Ratio 2.00 to 1.00
E. MINIMUM FIXED CHARGE COVERAGE RATIO
1. EBITDA for the immediately preceding quarter $_______________
2. Fixed Charges for such quarter $_______________
3. Fixed Charge Coverage Ratio
(divide line 1 by line 2) _____________
4. Minimum Fixed Charge Coverage Ratio 1.50 to 1.00
</TABLE>
<PAGE>
EXHIBIT F
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 9, 1998 (as
amended, restated or otherwise modified, the "Credit Agreement") among Golf
Trust of America, L.P., a Delaware limited partnership (the "Borrower"), Golf
Trust of America, Inc., GTA GP, Inc., and GTA LP, Inc., as Guarantors, the
Lenders (as defined in the Credit Agreement), NationsBank, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent"), and Bank
of America, National Trust and Savings Association, as Documentation Agent
for the Lenders (collectively, the "Agents"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations of Assignor under the Credit Agreement and the other Loan
Documents. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value
<PAGE>
of the Loan Documents or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations
under the Loan Documents or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Note held by the Assignor and
requests that the Administrative Agent exchange such Note for new Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and to the Assignor in an amount
equal to the Commitment retained by the Assignor, if any, as specified on
Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Article VII thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agents, the Assignor or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Agents to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to the Agents by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) attaches any U.S. Internal Revenue Service or other forms
required under Section 3.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of North Carolina.
<PAGE>
8. This Assignment and Acceptance 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 all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE>
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
<TABLE>
<S> <C>
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount
of Loans assigned: $_______________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date (if other than date
of acceptance by Agent): _________________, _______ (1)
</TABLE>
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------
Title:
--------------------------
Dated: , 19
------------------------ ---
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------
Title:
--------------------------
Domestic Lending Office:
------------------
Eurodollar Lending Office:
----------------
Accepted and Approved
this ___ day of _________________, _________
NATIONSBANK ,N.A., as Administrative Agent
By:
------------------------------
Title:
---------------------------
______________
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
<PAGE>
EXHIBIT G
to
Credit Agreement
Dated as of July 9, 1998
by and among
Golf Trust of America, L.P.,
as Borrower,
Golf Trust of America, Inc.,
GTA GP, Inc. and GTA LP, Inc.,
as Guarantors,
the Lenders party thereto,
NationsBank, N.A.,
as Administrative Agent for the Lenders,
and
Bank of America, National Trust and Savings Association,
as Documentation Agent for the Lenders
FORM OF GUARANTY SUPPLEMENT
GUARANTY SUPPLEMENT, dated as of __________, (the "Supplement"), made
by [INSERT NAME OF NEW GUARANTOR], a ____________________ (the "New
Guarantor"), in favor of NATIONSBANK, N.A., as Administrative Agent, and BANK
OF AMERICA, NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation Agent
(collectively, the "Agents"), under the Credit Agreement (as defined below)
for the ratable benefit of themselves and the Lenders.
1. Reference is hereby made to the Guaranty (as amended, restated, or
otherwise modified, the "Guaranty") set forth in Article IV of the Credit
Agreement (as amended, restated or otherwise modified, the "Credit
Agreement") dated as of July 9, 1998, between Golf Trust of America, L.P.,
Golf Trust of America, Inc., GTA GP, Inc., and GTA LP, Inc., as Guarantors,
in favor of the Agents, on behalf of the Lenders. This Supplement supplements
the Guaranty, forms a part thereof and is subject to the terms thereof.
Capitalized terms used and not defined herein shall have the meanings given
thereto or referenced in the Credit Agreement.
2. The New Guarantor hereby agrees to unconditionally guarantee to the
Agents for the ratable benefit of themselves, the Lenders and their
respective successors, endorsees, transferees and assigns, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of
all Guaranteed Obligations to the same extent and upon the same terms and
conditions as are contained in the Guaranty.
3. The New Guarantor hereby agrees that it is a party to the Guaranty
as if a signatory thereto on the Closing Date of the Credit Agreement, and
the New Guarantor shall
<PAGE>
comply with all of the terms, covenants, conditions and agreements and hereby
makes each representation and warranty, in each case set forth therein. The
New Guarantor agrees that the "Guaranty" as used therein or in any other Loan
Documents shall mean the Guaranty as supplemented hereby.
4. The New Guarantor hereby acknowledges it has received a copy of the
Credit Agreement and that it has read and understands the terms thereof.
IN WITNESS WHEREOF, the undersigned hereby causes this Supplement to be
executed and delivered as of the date first above written.
[CORPORATE SEAL] [INSERT NAME OF NEW GUARANTOR]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
