Exhibit 4.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is dated as of February 14,
2001 and entered into by and among GOLF TRUST OF AMERICA, INC., a Maryland
corporation (the "COMPANY"), Golf Legends Ltd., Inc. and Legends of Virginia LC
(each, a "LEGENDS OP UNITHOLDER" and collectively, the "LEGENDS OP
UNITHOLDERS"), Golf Trust of America, L.P., a Delaware limited partnership (the
"Partnership") and GTA GP, Inc., a Maryland Corporation.
THE PARTIES ENTER THIS AGREEMENT ON THE BASIS OF THE FOLLOWING FACTS,
UNDERSTANDINGS AND INTENTIONS:
A. Legends Golf Holding, LLC., a Delaware limited liability company, an
affiliate of the Legends OP Unitholders, has entered into a Purchase and Sale
Agreement (the "LEGENDS PURCHASE AGREEMENT") dated as of February 14, 2001 with
the Partnership pursuant to which Holdings shall purchase from the Partnership
certain golf courses described therein, subject to the terms and conditions set
forth therein.
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") pursuant to which the Company shall sell
substantially all of its assets, pay or provide for the payment of its
liabilities, wind up its operations, file articles of dissolution, and terminate
its existence (such transactions being the "LIQUIDATION").
C. In connection with the Company Plan of Liquidation, the Company
shall seek to liquidate or dissolve the Partnership, or to otherwise sell
substantially all of the Partnership's assets.
D. Concurrently herewith, the Legends OP Unitholders and the
Partnership have entered into a Second Amendment and Consent dated as of the
date hereof, pursuant to which, among other things, such parties have consented
to the liquidation or dissolution of the Partnership pursuant to or in
furtherance of the Company Plan of Liquidation.
E. Pursuant to this Agreement, the Legends OP Unitholders have agreed
to vote any shares of the Company's common stock, par value of $.01 per share
("COMMON STOCK") that they receive in exchange for their units of limited
partnership interest in the Partnership ("OP UNITS") in favor of the Company
Plan of Liquidation and the Liquidation (any shares of the Common Stock issued
to any Legends OP Unitholder in exchange for such Legends OP Unitholder's OP
Units being such Legends OP Unitholder's "SUBJECT SHARES").
F. Pursuant to this Agreement, the Legends OP Unitholders have further
agreed that, upon request by the Company, the Legends OP Unitholders will
exercise their rights to convert their OP Units into shares of Common Stock.
G. As a condition to its willingness to seek the consent of its holders
of common shares to adopt the Company Plan of Liquidation, the Company has
requested that the Legends OP Unitholders enter into this Agreement.
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G. The Legends OP Unitholders desire that the Company adopt the Company
Plan of Liquidation and consummate the Liquidation.
H. It is a condition precedent to the effectiveness of the Legends
Purchase Agreement that the Legends OP Unitholders enter into this Agreement
with the Company.
NOW, THEREFORE, in accordance with the terms of the Legends Purchase
Agreement, and to induce the Company to seek the consent of its holders of
common shares to adopt the Company Plan of Liquidation and consummate the
Liquidation, and in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as follows:
SECTION 1. AGREEMENT.
1.1 VOTING OF SUBJECT SHARES. At any meeting of the stockholders of the
Company called to vote upon the Company Plan of Liquidation and approve the
Liquidation, at any annual meeting at which such matters are voted upon, and at
any adjournment thereof or in any other circumstances upon which a vote, consent
or other approval with respect to the Company Plan of Liquidation or the
Liquidation is sought, each Legends OP Unitholder shall vote (or cause to be
voted) the Subject Shares of such Legends OP Unitholder in favor of the Company
Plan of Liquidation, the Liquidation and the transactions contemplated thereby,
including a proposal to permit the Company to adjourn such meeting if needed to
solicit additional votes in favor of the Company Plan of Liquidation (the
"ADJOURNMENT PROPOSAL").
1.2 GRANT OF IRREVOCABLE PROXY; ATTORNEY-IN-FACT; APPOINTMENT OF PROXY.
1.2.1 Each Legends OP Unitholder hereby irrevocably grants to,
and appoints W. Xxxxxxx Xxxxx, XX and Xxxxx X. Xxxxxx, in their capacity as
officers of the Company, and any individual who shall hereafter succeed to their
respective offices of the Company, and each of them individually, such Legends
OP Unitholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Legends OP Unitholder, to vote such
Legends OP Unitholder's Subject Shares, or grant a consent or approval in
respect of such Subject Shares, in favor of adoption of the Company Plan of
Liquidation, the Liquidation and the transactions contemplated thereby, and the
Adjournment Proposal.
1.2.2 Each Legends OP Unitholder hereby affirms that the
irrevocable proxy set forth in this Section 1.2 is given in connection with the
adoption by the Company of the Company Plan of Liquidation and the solicitation
by the Company of its shareholders' consent thereto and to the Liquidation, and
that such irrevocable proxy is given to secure the performance of the duties of
the Legends OP Unitholders under this Agreement. Each Legends OP Unitholder
hereby further affirms that the irrevocable proxy is coupled with an interest,
and may under no circumstances be revoked. Each Legends OP Unitholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof.
1.3 NO INCONSISTENT ACTIONS. Each Legends OP Unitholder shall not, nor
shall it permit any of its directors, officers, partners, employees or agents or
any investment banker, attorney or other adviser or representative of such
Legends OP Unitholder to, directly or indirectly, cause any of the
representations set forth in Section 2 hereof to become untrue.
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1.4 CONVERSION OF OP UNITS. Not more than two days after receipt of a
written request from the Company, each Legends OP Unitholder will exercise its
rights to convert its OP Units into shares of Common Stock, PROVIDED that the
Company's request and the rights and obligations of the Legends OP Unitholders
shall be subject to any and all applicable limitations of applicable law and the
governing documents of the Company and the Partnership, as they may be amended
from time to time. Such conversion shall be for shares of Common Stock only and,
in connection therewith, neither the Company, nor the Partnership, nor the
General Partner of the Partnership shall have any rights, notwithstanding any
provisions of the governing documents of the Company and/or the Partnership to
the contrary, to elect to purchase such OP Units for cash.
1.5 LIMITATION ON PROXY. Anything herein to the contrary
notwithstanding, the agreement to vote and proxy granted herein shall be limited
to a vote of the Subject Shares on the Company Plan of Liquidation and the
related Liquidation and the transactions contemplated thereby and the
Adjournment Proposal and shall not obligate the Legends OP Unitholders to vote,
nor constitute a grant of a proxy with respect to, the Subject Shares with
respect to any other matter presented for a vote of the stockholders of the
Company.
1.6 TERMINATION OF PROXY. The agreement to vote and proxy granted
herein shall terminate: (a) 120 days after the date of (i) a determination by
the Board of Directors of the Company not to submit the Company Plan of
Liquidation to the Company's stockholders for approval or (ii) a vote by the
stockholders of the Company at any meeting at which the Company Plan of
Liquidation was voted upon and not approved (but shall continue in full force
and effect until the end of such 120 day period, including for purposes of
voting on the Company Plan of Liquidation at any meeting of the stockholders of
the Company following the meeting at which the Company Plan of Liquidation was
voted on and not approved); or (b) upon termination of the Legends Purchase
Agreement by Legends Golf Holding, LLC as a result of Golf Trust of America L.P.
being in material breach of the Legends Purchase Agreement (after notice and a
reasonable opportunity to cure to the extent provided in the Legends Purchase
Agreement) that will cause irreparable harm to Legends Golf Holding, LLC or the
Legends OP Unitholders, as determined by a final judicial order by a court of
proper jurisdiction.
SECTION 2. LEGENDS OP UNITHOLDERS' REPRESENTATIONS AND WARRANTIES
In order to induce the Company to enter into this Agreement, each
Legends OP Unitholder, severally and not jointly, represents and warrants to the
Company that the following statements with respect to such Legends OP Unitholder
and no other Legends OP Unitholder are true, correct and complete.
2.1 POWER AND AUTHORITY. Each Legends OP Unitholder that is a
corporation, partnership or trust has all requisite corporate, partnership or
trust power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
2.2 AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Agreement have been duly authorized by all necessary corporate, partnership or
trust action on
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the part of each Legends OP Unitholder that is a corporation, partnership or
trust. This Agreement has been duly executed and delivered by each Legends OP
Unitholder.
2.3 NO CONFLICT. The execution and delivery of this Agreement by each
Legends OP Unitholder does not (a) conflict with or violate any agreement, law,
rule, regulation, order, judgment or decision or other instrument binding upon
such Legends OP Unitholder, 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 OP Units owned by such Legends OP Unitholder
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Legends OP Unitholder is a party or by which Legends OP Unitholder or the OP
Units owned by such Legends OP Unitholder are bound or affected.
2.4 BINDING OBLIGATION. This Agreement is the legally valid and binding
obligation of each Legends OP Unitholder, enforceable against such Legends OP
Unitholder 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.
2.5 OP UNITS. Each Limited Partner is the legal and beneficial owner of
the number of units of each class or series of OP Units set forth opposite its
name on ANNEX I hereto, free and clear of any liens or encumbrances whatsoever,
except those which impose no restrictions on such Legends OP Unitholder's right
to vote such OP Units or any Subject Shares received in exchange for such OP
Units. Each Legends OP Unitholder has the sole right to vote its OP Units and
any Subject Shares received in exchange for such OP Units, and none of the OP
Units owned by such Legends OP Unitholder is subject to any voting trust or
other agreement, arrangement or restriction with respect to the voting of such
OP Units or any Subject Shares received in exchange for such OP Units, except
this Agreement. Each Legends OP Unitholder represents and warrants that any
proxies heretofore given in respect of the OP Units owned by such Legends OP
Unitholder or any Subject Shares received in exchange for such OP Units 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 3. TRANSFER OF OP UNITS AND SUBJECT SHARES; ADDITIONAL SHARES.
Each Legends OP Unitholder agrees that this Agreement and the
obligations hereunder shall attach to the OP Units of such Legends OP Unitholder
and any Subject Shares received in exchange for such OP Units and shall be
binding upon any person or entity to which legal or beneficial ownership of any
such OP Units or Subject Shares shall pass, whether by operation of law or
otherwise, including such Legends OP Unitholder's successors. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Partnership or the Company
affecting the OP Units or the Common Stock, respectively, or the acquisition of
additional OP Units or shares of the Common Stock by any
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Legends OP Unitholder, the obligations hereunder shall attach to any additional
OP Units or shares of the Common Stock issued to or acquired by such Legends OP
Unitholder.
SECTION 4. MISCELLANEOUS.
4.1 AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties against whom such amendment
is sought to be enforced.
4.2 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any Legends OP Unitholders, on the
one hand, without the prior written consent of the Company, nor by the Company,
on the other hand, without the prior written consent of the Legends OP
Unitholders, except that the Company 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 Company and to any liquidating trust formed by
the Company. Subject to the preceding sentence, this Agreement shall 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 Legends OP Unitholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as the Company
may request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
4.4 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to the addresses for each party set forth
below its name on the signature pages hereof, or to such other address as such
party shall have notified the other party hereof.
4.5 HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
4.6 APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Maryland regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
4.7 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.
4.8 COUNTERPARTS; EFFECTIVENESS. This Agreement 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
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physically attached to the same document. This Agreement shall become effective
upon the execution of a counterpart hereof by the Company and the Legends OP
Unitholders
4.9 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule or law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, as of the date first written above.
"COMPANY"
GOLF TRUST OF AMERICA, INC.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
"LEGENDS OP UNITHOLDER"
GOLF LEGENDS LTD., INC.
By: /s/ Xxxxx X. Xxxxx
Title: President
"LEGENDS OP UNITHOLDER"
LEGENDS OF VIRGINIA LC
By: /s/ Xxxxx X. Xxxxx
Title: President
"PARTNERSHIP"
GOLF TRUST OF AMERICA, L.P.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
GTA GP, INC.
By: /s/ W. Xxxxxxx Xxxxx, XX
Title: Chief Executive Officer and President
S-1
ANNEX I
TABLE OF LIMITED PARTNERSHIP INTERESTS
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NAME OF PARTNER COMMON 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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TOTAL: 3,726,856
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