Exhibit 10.3
SECOND AMENDMENT AND CONSENT
THIS SECOND AMENDMENT AND CONSENT (this "SECOND AMENDMENT") is dated as
of February 14, 2001 and entered into by and among GOLF TRUST OF AMERICA, L.P.,
a Delaware limited partnership (the "PARTNERSHIP") and THE LIMITED PARTNERS OF
THE PARTNERSHIP listed on the signature pages hereof (each, a "LIMITED PARTNER"
and collectively, the "LIMITED PARTNERS"), and is made with reference to that
certain First Amended and Restated Agreement of Limited Partnership of Golf
Trust of America, L.P., dated as of February 12, 1997, as amended by that
certain First Amendment to Partnership Agreement dated as of February 1, 1998
(as so amended, the "PARTNERSHIP AGREEMENT"). Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Partnership Agreement.
THE PARTIES ENTER THIS AGREEMENT ON THE BASIS OF THE FOLLOWING
FACTS, UNDERSTANDINGS AND INTENTIONS:
A. GTA GP, Inc., a Maryland corporation (the "GENERAL PARTNER") is the
general partner of the Partnership, and is an indirect wholly owned subsidiary
of Golf Trust of America, Inc., a Maryland corporation (the "COMPANY").
B. The Company presently intends to seek the approval of its
shareholders for the adoption of a plan of liquidation or dissolution (the
"COMPANY PLAN OF LIQUIDATION") and, if such plan is approved and the requisite
consents obtained, shall sell substantially all of its assets in connection
therewith.
C. In connection with the Company Plan of Liquidation or dissolution of
the Company, the Company shall seek to liquidate or dissolve the Partnership, or
to otherwise sell substantially all of its assets.
D. Section 11.02 of the Partnership Agreement provides that the General
Partner may not sell, transfer or convey substantially all of the assets of the
Partnership without the written consent of Limited Partners holding 66.67% of
the Partnership Interests of the Limited Partners.
E. Section 8.08 of the Partnership Agreement provides that, if the
Partnership chooses to sell an "Initial Golf Course" in certain circumstances
set forth therein, the Partnership shall use reasonable efforts to structure
such sale as a like-kind exchange under Section 1031 of the Internal Revenue
Code.
F. Structuring sales of the Initial Golf Courses as like-kind exchanges
would prevent the Partnership from selling substantially all of the assets of
the Partnership, to the detriment of the Partnership and the Limited Partners.
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G. As a condition precedent to the Company's solicitation of its
shareholders' consent to the Company Plan of Liquidation, the Company has
required that the Partnership obtain the requisite consent of its Limited
Partners to the sale of substantially all of the assets of the Partnership
pursuant to the Company Plan of Liquidation and to the deletion of Section 8.08
of the Partnership Agreement.
H. Each Limited Partner executing this Second Amendment desires the
Partnership to sell all or substantially all of its assets pursuant to the
Company Plan of Liquidation and to delete Section 8.08 of the Partnership
Agreement in order to permit the Partnership to sell the Initial Golf Courses
without structuring such sales as like-kind exchanges under Section 1031 of the
Internal Revenue Code.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. CONSENT
The Limited Partners hereby consent, pursuant to Section 11.02 of the
Partnership Agreement, to the sale, transfer or conveyance of all or
substantially all of the assets of the Partnership in one or more transactions
or series of transactions (the "PARTNERSHIP LIQUIDATION") following approval of,
and pursuant to, the Company Plan of Liquidation. Anything herein to the
contrary notwithstanding, the consent provided in this Section 1 shall be
limited to a consent to the Partnership Liquidation following approval of, and
pursuant to, the Company Plan of Liquidation and shall not obligate the Limited
Partners to consent to or vote for, nor constitute a consent to, any other
matter presented for the consent or vote of the Limited Partners. The term of
this consent shall expire co-terminously with the termination of the agreement
to vote and proxy contained in that certain Voting Agreement of even date by and
among Golf Trust of America, Inc. and Golf Legends Ltd., Inc., Legends of
Virginia LC, Golf Trust of America, L.P. and GTA GP, Inc.
SECTION 2. AMENDMENT
2.1 AMENDMENT TO SECTION 8.08.
Section 8.08 of the Partnership Agreement is hereby amended by deleting
it in its entirety and substituting the following therefor:
"8.08 [Intentionally omitted]"
SECTION 3. LIMITED PARTNERS' REPRESENTATIONS AND WARRANTIES
In order to induce the Partnership to enter into this Second Amendment,
each Limited Partner, severally and not jointly, represents and warrants to the
Partnership that the following statements with respect to such Limited Partner
and no other Limited Partner are true, correct and complete:
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3.1 POWER AND AUTHORITY. Each Limited Partner that is a corporation,
partnership or trust has all requisite corporate, partnership or trust power and
authority to enter into this Second Amendment and to carry out the transactions
contemplated hereby.
3.2 AUTHORIZATION OF SECOND AMENDMENT. The execution and delivery of
this Second Amendment have been duly authorized by all necessary corporate,
partnership or trust action on the part of each Limited Partner that is a
corporation, partnership or trust. This Second Amendment has been duly executed
and delivered by each Limited Partner.
3.3 NO CONFLICT. The execution and delivery of this Second Amendment by
each Limited Partner does not (a) conflict with or violate any agreement, law,
rule, regulation, order, judgment or decision or other instrument binding upon
such Limited Partner, nor require any consent, notification, regulatory filing
or approval which has not been obtained or (b) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Units owned by such Limited Partner pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Limited
Partner is a party or by which Limited Partner or the Units owned by such
Limited Partner are bound or affected.
3.4 BINDING OBLIGATION. This Second Amendment is the legally valid and
binding obligation of each Limited Partner, enforceable against such Limited
Partner in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
3.5 LIMITED PARTNERSHIP UNITS. Each Limited Partner is the legal and
beneficial owner of the number of units of each class or series of Limited
Partnership Interest set forth opposite its name on ANNEX I hereto
(collectively, the "OP Units"), free and clear of any liens or encumbrances
whatsoever, except those which impose no restrictions on such Limited Partner's
right to vote such OP Units. Each Limited Partner has the sole right to vote its
OP Units, and none of the OP Units owned by such Limited Partner is subject to
any voting trust or other agreement, arrangement or restriction with respect to
the voting of such OP Units, except this Agreement. Each Limited Partner
represents and warrants that any proxies heretofore given in respect of the OP
Units owned by such Limited Partner are revocable, and that all such proxies are
hereby revoked or will be revoked by appropriate notice or other instrument
concurrently with the execution and delivery of this Agreement.
SECTION 4. MISCELLANEOUS
4.1 REFERENCE TO AND EFFECT ON THE PARTNERSHIP AGREEMENT. The
execution, delivery and performance of this Second Amendment shall not, except
as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or
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remedy of the Partnership or the Partners under, the Partnership Agreement,
which is hereby ratified and confirmed.
4.2 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any Limited Partner, on the one
hand, without the prior written consent of the Partnership, nor by the
Partnership, on the other hand, without the prior written consent of the Limited
Partners, except that the Partnership may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to any direct or indirect
wholly owned subsidiary of the Partnership or to any liquidating trust formed by
the Partnership. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
4.3 FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of their obligations under this Second Amendment. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of either party
to effectuate, carry out or comply with all the terms of this Second Amendment.
4.4 HEADINGS. Section and subsection headings in this Second Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Second Amendment for any other purpose or be given any substantive
effect.
4.5 APPLICABLE LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.6 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
4.7 COUNTERPARTS; EFFECTIVENESS. This Second Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Second Amendment shall become
effective upon the execution and delivery of a counterpart hereof by the
Partnership and Limited Partners (including GTA LP) holding 66.67% of the
Percentage Interests of the Limited Partners.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment, or caused this Second Amendment to be duly executed and delivered by
their respective officers thereunto duly authorized, as of the date first
written above.
"PARTNERSHIP"
GOLF TRUST OF AMERICA, L.P.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
"GENERAL PARTNER"
GTA GP., INC.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
"LIMITED PARTNERS"
GTA LP, INC.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
GOLF LEGENDS LTD., INC.
By: /s/ Xxxxx X. Xxxxx
Title: President
LEGENDS OF VIRGINIA LC
By: /s/ Xxxxx X. Xxxxx
Title: Manager
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ANNEX I
TABLE OF LIMITED PARTNERSHIP INTERESTS
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NAME OF PARTNER COMMON UNITS SERIES A UNITS
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Golf Legends Ltd., Inc. 3,128,669
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Legends of Virginia LC 598,187
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GTA LP, Inc. 8,127,980
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GTA, GP, Inc. 27,553
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GTA LP, Inc. 800,000
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Annex I-1
