Exhibit 10.22.3
AMENDED AND RESTATED LOAN
AGREEMENT
THIS AMENDED AND RESTATED LOAN
AGREEMENT (the
“Loan Agreement”) is made effective as of the
day of August, 2005, by and between TEXTRON FINANCIAL
CORPORATION , a Delaware corporation (“Textron”),
and GTA STONEHENGE, LLC , a South Carolina limited liability
company (“Borrower”).
RECITALS
A.
Pursuant to the terms of a certain
Loan Agreement dated March 18, 2004 between Textron and
Borrower, Textron agreed to advance to Borrower a revolving loan in
the principal amount of up to Two Million One Hundred Thousand and
00/100 Dollars ($2,100,000.00) (the “Prior Loan
Agreement”).
B.
Pursuant to the terms of a certain
loan modification commitment dated June 29, 2005 (the
“Modification Commitment”), Textron has agreed to amend
and increase the principal amount of the revolving loan by an
additional Two Million One Hundred Thousand and 00/100 Dollars
($2,100,000.00) to provide Borrower a revolving loan with an
aggregate principal amount of up to Four Million Two Hundred
Thousand and 00/100 Dollars ($4,200,000.00) (the
“Loan”). The Loan is evidenced and/or secured by
(a) the Modification Commitment; (b) a first lien
Leasehold Mortgage, Security Agreement and Fixture Filing
(“Leasehold Mortgage”) from Borrower to Textron, dated
March 18, 2004, encumbering Borrower’s leasehold
interest in and to certain real properties (the “Real
Property”) located in Richland County, South Carolina, and
described more particularly in the Leasehold Mortgage and
encumbering certain personal property described more particularly
on Exhibit “B” (the “Personal
Property”, with the Real Property and Personal Property being
collectively referred to as the “Property”) to the
Leasehold Mortgage, as modified by that certain Notice of Future
Advance, Note, Mortgage and Loan Document Modification Agreement of
even date herewith from Borrower (the “Mortgage
Modification”) (the Leasehold Mortgage and the Mortgage
Modification are collectively referred to as the “Leasehold
Mortgage”); (c) an Assignment of Leases, Rents and
Contracts dated March 18, 2004, assigning Borrower’s
interest in the leases and rents from the Property (the
“Assignment”); (d) a Revolving Promissory Note
dated March 18, 2004 as amended and restated by that certain
Amended and Restated Revolving Promissory Note of even date
herewith by Borrower in favor of Textron in the principal amount of
up to Four Million Two Hundred Thousand and 00/100 Dollars
($4,200,000.00) (the “Revolving Note”); (e) the
Prior Loan Agreement, as amended and restated by this Loan
Agreement; and; (f) such other documents which recite that
they have been given as security for the Revolving Note (all the
aforementioned documents shall herein be referred to as
“Security Documents”). The Revolving Note is
guaranteed by Golf Trust of America, L.P., a Delaware limited
partnership (“Guarantor”), pursuant to that certain
Guaranty Agreement dated March 18, 2004, executed by Guarantor
(the “Guaranty”). The Revolving Note, the
Leasehold Mortgage, the Assignment, the Security Documents, the
Mortgage, and the Guaranty are collectively called the “Loan
Documents”.
C.
The Modification Commitment provides
that the Loan will be disbursed to Borrower in advances, subject to
the satisfaction of certain conditions precedent.
Concurrently
herewith, Textron is advancing to Borrower the
initial advance in the amount of
,
(the “First Advance”).
D.
Textron and Borrower now wish to
enter into this Loan Agreement, inter alia, to set forth the terms
and conditions upon which Textron will make Advances of the Loan to
Borrower after the First Advance.
NOW, THEREFORE, for and in
consideration of the promises and covenants herein contained, as
well as the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged by the parties hereto, Textron and Borrower
agree as follows:
1.
Revolving Loan
and Agreement to Advance . Subject to the terms
hereof, all or part of the principal amount evidenced by the
Revolving Note may be borrowed (and to the extent any principal
amount advanced is repaid by Borrower, such sum may be borrowed
again) prior to the maturity date hereof, but only in accordance
with this Loan Agreement and only if Borrower is not in default
under the Revolving Note or any of the other documents securing or
executed in connection with the Revolving Note. At no time however,
shall the outstanding principal balance at any point in time under
this Revolving Note exceed the Four Million Two Hundred Thousand
and 00/100 Dollars ($4,200,000.00); provided, furthermore, under no
circumstance shall the outstanding principal balance at any time
exceed the amount permitted under this Loan Agreement. Upon the
written request of Borrower, and upon the satisfaction of each of
the conditions hereafter set forth, Textron agrees to advance to
Borrower additional advances of the Loan in excess of the First
Advance (each a “Revolver Advance” and, collectively
the “Revolver Advances”, with the First Advance and
Revolver Advances being collectively referred to as the
“Advances”) in an amount equal to at least One Hundred
Thousand Dollars ($100,000.00) per advance (unless less than One
Hundred Thousand Dollars ($100,000.00) remains to be advanced, in
which event a lesser amount equal to the remaining amount may be
advanced), until the aggregate of the First Advance and the
Revolver Advances outstanding at any time totals Four Million Two
Hundred Thousand and 00/100 Dollars ($4,200,000.00).
2.
Revolver
Advances . Textron’s
obligation to fund any Revolver Advance(s) shall be conditioned
upon the satisfaction of each of the following conditions precedent
with respect to each Revolver Advance:
(a)
Borrower shall
deliver to Textron a Compliance Certificate in form and content
attached hereto as Exhibit A, signed by a duly authorized
corporate officer of Borrower, certifying that the information and
statements therein are true and correct.
(b)
Borrower shall
have provided evidence satisfactory to Textron that (x) gross
revenues attributable to the Property for the most recent twelve
(12) month period have not decreased from gross revenues from any
prior twelve (12) month period by thirty percent (30%) or more and
(y) Net Operating Income attributable to the Real Property during
the most recent twelve (12) month period has not decreased from Net
Operating Income for any prior twelve (12) month period by twenty
percent (20%) or
2
more. Such
evidence shall be in the form of the financial information required
pursuant to Section 1.12 of the Leasehold
Mortgage.
(c)
Borrower must
maintain a 1.30:1 Debt Service Coverage Ratio (as defined in the
Leasehold Mortgage) on the immediately trailing twelve months cash
flow to draw any future advances.
(d)
Borrower shall
not be entitled to receive more than one Revolver Advance per
thirty (30) day period.
(e)
There shall not
have occurred any Event of Default under the Leasehold Mortgage or
any other Loan Document which has not been cured within any
applicable cure period nor shall there have occurred any event
which with notice, the passage of time, or both, would constitute
an Event of Default under the Leasehold Mortgage or any other Loan
Document.
(f)
Borrower shall
have demonstrated a satisfactory payment history with respect to
the Loan.
(g)
Textron shall
have determined that Borrower has not deferred any maintenance or
otherwise limited expenses in order to achieve the required Debt
Service Coverage Ratio.
(h)
Borrower shall
obtain and deliver to Textron, at Borrower’s sole cost and
expense, an endorsement to the mortgagee’s policy of title
insurance (the “Title Policy”) issued to Textron
concurrently with the effective date of this modification, which
endorsement shall: (i) “down-date” the effective
date of the Title Policy to the date of the requested Advance; and
(ii) contain no additional exceptions to coverage which were
not included in the Title Policy.
Borrower acknowledges and agrees
that if any of the certifications under the Compliance Certificate
are not true and correct in all material respects, said event shall
immediately constitute a default under the Loan Documents and
immediately entitle Textron to all rights and remedies under the
Loan Documents. Borrower acknowledges that with respect to
said event, it shall not have any notice or cure period, except for
any misstatement that does not materially adversely affect the
value or operation of the Property as determined by Textron
(“Minor Breach”), in which case, Textron agrees to
allow Borrower fifteen (15) days after notice of the Minor Breach
to cure said Minor Breach, or such longer period of time as
reasonably deemed necessary if Textron determines said cure can not
be effectuated within fifteen (15) days. If Borrower fails to cure
the Minor Breach within said fifteen (15) days, then Borrower shall
immediately pay back to Lender the funds disbursed by Lender in
reliance upon the Certificate containing the Minor Breach
(excluding the initial advance), together with accrued interest on
said amounts based upon the Basic Interest Rate from the date of
disbursement to the date the funds are returned.
3.
Security for
Advances . The Advance(s) made
by Textron shall be evidenced by the Revolving Note and shall be
secured by the Leasehold Mortgage and the other Loan
3
Documents. The amount
of the Advance(s) shall bear interest pursuant to the terms of the
Note, as of the date on which the
Advance(s) is disbursed by Textron to Borrower.
4.
Authority to
Request Advances . By execution of this
Loan Agreement, Borrower authorizes Textron to make the Revolver
Advance(s) upon the written request of W. Bradley Blair, II,
or such other individual as may hereafter be authorized in a
written notice by Borrower to Textron (and Textron may rely on any
such designation without inquiring into its validity).
Borrower agrees that: (a) Textron is not acting as agent or
trustee for Borrower; (b) Textron will not be held accountable
for any Revolver Advance(s) made in good faith; (c) all
Advances made prior to the receipt of written notice of revocation
of any designation pursuant to this Section 3 shall be deemed
advanced in good faith; and (d) relocation of the agency
granted herein by Borrower can be accomplished only by thirty (30)
days’ prior written notice to Textron.
5.
Unused Line
Fee . Borrower shall pay to
Textron a monthly fee for the unused line (the “Unused
Fee”) in arrears on the first day of each month for the
immediately preceding month and on the maturity date. The
amount of the Unused Fee shall be calculated by multiplying .25%
per annum by the difference between the Loan amount of Four Million
Two Hundred Thousand and 00/100 Dollars ($4,200,000.00) and the
average of the outstanding principal balance of the Loan during the
preceding month.
6.
Representations and
Covenants .
(a)
Deposit
Account . Borrower represents
and warrants that Borrower shall deposit into Borrower’s
operating account maintained with Wachovia Bank, N.A. any and all
funds, revenue and proceeds received from the use and operation of
the Property (the “Deposit Account”). Furthermore
Borrower represents and covenants to use said funds strictly to pay
only operating costs of the Property and the rent payments due
under the GTA Lease (as defined in the Leasehold Mortgage), unless
Borrower otherwise receives Lender’s written consent to use
said funds for any other purpose, provided, however, upon the
occurrence of an Event of Default under the Leasehold Mortgage or
the Mortgage), Borrower shall no longer be permitted to withdraw
any funds in said Deposit Account and Lender may exercise any and
all rights with respect to the Deposit Account under this
Agreement, the Pledge Agreement and the Deposit Account Control
Agreement. Borrower hereby pledges and assigns to Lender and
grants Lender the security interest in, all funds, revenues and
proceeds now or hereafter deposited into the Deposit Account
pursuant to the Pledge Agreement dated March 18, 2004, and
said Pledge Agreement is hereby ratified and
reaffirmed.
(b)
Compliance
with Laws and Permits . The use of the
Property as a golf course will not violate (i) any applicable
law, regulation, ordinance or order of any kind whatsoever
(including any such laws relating to zoning, building and
environmental protection), or (ii) any permit or license
issued with respect to the Property. The Property is in
compliance with all applicable laws, regulations, ordinances and
orders applicable thereto, including the applicable requirements of
the Americans with Disabilities Act of 1990, as a
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