VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is dated as of
February 22, 2001 and entered into by and between GOLF TRUST OF AMERICA, INC., a
Maryland corporation (the "COMPANY"), and AEW TARGETED SECURITIES FUND, L.P. a
Delaware limited partnership ("AEW" and, together with any transferees of the
Subject Shares, the "SHAREHOLDER").
THE PARTIES ENTER THIS AGREEMENT on the basis of the following
facts, understandings and intentions:
A. The Shareholder is the legal and beneficial holder of
800,000 shares (such shares, including any shares of the Company's common stock
received upon conversion of such shares, being the "SUBJECT SHARES") of 9.25%
Series A Cumulative Convertible Preferred Stock (the "SERIES A PREFERRED
SHARES") issued by the Company, which constitutes all of the issued and
outstanding Series A Preferred Shares, the terms and provisions of which are set
forth in the Articles Supplementary Classifying and Designating the Series A
Preferred Shares (the "ARTICLES SUPPLEMENTARY").
B. The Company intends to seek the approval of its
stockholders for the adoption of a plan of liquidation and dissolution
substantially in the form attached hereto as EXHIBIT A. Such EXHIBIT A, together
with any changes thereto approved by the Company and, if required pursuant to
the terms of this Agreement, the holders of the Series A Preferred Shares, is
referred to herein as the "PLAN OF LIQUIDATION." Following approval of the Plan
of Liquidation and pursuant to the Plan of Liquidation, the Company intends to
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. Section 12 of the Articles Supplementary requires the
Company to obtain the affirmative vote of at least 66-2/3% of the votes entitled
to be cast by the holders of the Series A Preferred Shares for the purpose of
effecting or validating certain types of amendments and transactions set forth
therein.
D. In contemplation of adopting the Plan of Liquidation and
consummating the Liquidation, the Company has requested the Shareholder to agree
to consent to, approve, and to vote in favor of the Plan of Liquidation and the
Liquidation prior to the solicitation by the Company of the holders of its sole
class of common stock, par value one cent ($0.01) per share (the "COMMON
SHARES"), for approval of the Plan of Liquidation.
E. In consideration of the Shareholder's agreements herein,
the Company and the Shareholder have agreed that the Company will redeem the
Series A Preferred Shares for the Liquidation Preference (as defined herein)
prior to the consummation of the Liquidation.
F. The Shareholder desires that, subject to the effectiveness
of this Voting Agreement, the Company adopt the Plan of Liquidation and conduct
the Liquidation.
1 Voting Agreement
NOW, THEREFORE, in consideration of the promises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
SECTION 1. AGREEMENT
1.1 APPROVAL OF THE PLAN OF LIQUIDATION. The Shareholder, being the legal
and beneficial holder of all of the issued and outstanding Series A Preferred
Shares, does hereby approve and consent to the Plan of Liquidation and the
Liquidation and waives any rights, including, without limitation, rights under
Article Third, Section 12(f)(iii) of the Articles Supplementary, to dissent from
the approval of the Plan of Liquidation and the Liquidation by the stockholders
of the Company; PROVIDED that (a) the plan of liquidation presented to the
holders of the Company's Common Shares for approval contains no changes from the
form attached hereto as EXHIBIT A that, individually or in the aggregate,
materially and adversely affect the holders of the Series A Preferred Shares or
the Company's ability to redeem the Series A Preferred Shares pursuant to the
terms of this Agreement, unless such changes were previously approved by the
holders of a majority of the Series A Preferred Shares (such majority to include
AEW if AEW holds at least 100,000 Series A Preferred Shares at the time of such
approval), and (b) the Plan of Liquidation is approved by the requisite vote of
holders of the issued and outstanding Common Shares of the Company on or before
September 30, 2001 (such conditions (a) and (b) being the "APPROVAL
CONDITIONS").
1.2 VOTING OF SUBJECT SHARES. To the extent the Shareholder may be
entitled to vote any of the Subject Shares at any special meeting of the
stockholders of the Company called to vote upon the Plan of Liquidation, or at
any annual meeting at which such matters are voted upon, or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval with respect to the Plan of Liquidation or the Liquidation is sought,
the Shareholder shall vote (or cause to be voted) such Subject Shares in favor
of the Plan of Liquidation, the Liquidation and the transactions contemplated
thereby; PROVIDED that the Approval Conditions are met.
1.3 GRANT OF IRREVOCABLE PROXY; ATTORNEY-IN-FACT; APPOINTMENT OF PROXY
1.3.1 Subject to termination of this Agreement in accordance with its
terms, the Shareholder 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 (the "Proxies"), and each of them
individually, the Shareholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of the
Shareholder, to vote the Shareholder's Subject Shares, or grant a consent
or approval in respect of such Subject Shares, in favor of adoption of the
Plan of Liquidation, the Liquidation, and the transactions contemplated
thereby.
1.3.2 The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 1.3 is given in connection with the adoption by the
Company of the Plan of Liquidation and the solicitation by the Company of
the consent of the holders of its Common Shares thereto and to the
Liquidation, and that such irrevocable proxy is given
2 Voting Agreement
to secure the performance of the duties of the Shareholder under this
Agreement. The Shareholder hereby further affirms that the irrevocable
proxy is coupled with an interest, and may under no circumstances be
revoked, except as provided below in Section 1.3.3. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof.
1.3.3 Anything in this Section 1.3 to the contrary notwithstanding,
the proxy granted in this Section 1.3 shall be (a) revoked upon written
notice by the Shareholder to the Company anytime following the filing of a
definitive proxy statement of the Company with the Securities and Exchange
Commission soliciting approval of the holders of the Company's Common
Shares of a plan of liquidation that does not, in the reasonable belief of
the Shareholder, satisfy the Approval Condition set forth in clause (a) of
Section 1.1 hereof, provided that such notice is delivered to the Company
within seven (7) business days of the date such definitive proxy statement
is delivered to the Shareholder, or (b) automatically revoked, without
further action by the Shareholder, on October 1, 2001, if the Approval
Condition set forth in clause (b) of Section 1.1 hereof is not then
satisfied, or (c) revoked upon delivery of the written notice mentioned in
Section 4.5.3. Any such revocation of the proxy shall not affect any
action taken by the Proxies prior to the revocation of the proxy.
1.4 AGREEMENT TO REDEEM SUBJECT SHARES. Notwithstanding Section 5 of the
Articles Supplementary, the Company and the Shareholder hereby agree that in the
case of any Liquidation made pursuant to the Plan of Liquidation, the Company
shall deliver a Mandatory Redemption Notice (as such term is defined in the
Articles Supplementary) promptly after the Company determines, in good faith,
that the Company and its consolidated subsidiaries (including Golf Trust of
America, L.P., a Delaware limited partnership of which a wholly-owned subsidiary
of the Company is the sole general partner (the "Operating Partnership")) have
received sufficient net proceeds from sales or dispositions of their assets
and/or operations to redeem all of the Series A Preferred Shares without
violating any legal or contractual obligations of the Company. The date of the
intended redemption set forth in such notice shall be not less than 30 nor more
than 60 days after delivery of such Mandatory Redemption Notice, and the
liquidation preference (the "LIQUIDATION PREFERENCE") payable to the holders of
the Series A Preferred Shares in such redemption shall be (subject to equitable
adjustment whenever there shall occur a stock dividend, stock split,
combination, reorganization, recapitalization, reclassification or other similar
event involving a change in the capital structure of the Series A Preferred
Shares) $25.00 per share plus dividends (whether or not earned or declared)
accrued and unpaid thereon to the date of final distribution to such holders.
For purposes of the Articles Supplementary, a Liquidation (as defined therein)
that occurs pursuant to the Plan of Liquidation shall be deemed to occur on the
redemption date set forth in such notice.
1.5 NO INCONSISTENT ACTIONS. Subject to the right of the Shareholder to
transfer the Subject Shares, each of the Company and the Shareholder shall not,
and shall not permit their respective directors, officers, partners, employees
or agents or any investment banker, attorney or other adviser or representative
of the Company or the Shareholder, as applicable, to, directly or indirectly,
cause any of their respective representations set forth in Section 2 hereof to
become untrue.
3 Voting Agreement
SECTION 2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder
represents and warrants to the Company as of the date of this Agreement as
follows:
2.1.1 POWER AND AUTHORITY. The Shareholder has all requisite partnership
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
2.1.2 AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Agreement have been duly authorized by all necessary partnership action on the
part of the Shareholder. This Agreement has been duly executed and delivered by
the Shareholder.
2.1.3 NO CONFLICT. The execution and delivery of this Agreement by the
Shareholder does not (a) conflict with or violate any agreement, law, rule,
regulation, order, judgment or decision or other instrument binding upon the
Shareholder, 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 Subject Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Shareholder is a party or by which
the Shareholder or the Subject Shares are bound or affected.
2.1.4 BINDING OBLIGATION. This Agreement is the legally valid and binding
obligation of the Shareholder, enforceable against the Shareholder 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.
2.1.5 THE SUBJECT SHARES. The Shareholder is the legal and beneficial
owner of the Subject Shares, free and clear of any liens or encumbrances
whatsoever, except (i) pursuant to the Credit Agreement by and between the
Shareholder and Fleet Bank and (ii) those which impose no restrictions on the
Shareholder's right to vote the Subject Shares. The Shareholder has the sole
right to vote the Subject Shares, and none of the Subject Shares is subject to
any voting trust or other agreement, arrangement or restriction with respect to
the voting of such Subject Shares, except this Agreement. The Shareholder
represents and warrants that any proxies heretofore given in respect of the
Subject Shares are revocable, and that all such proxies are hereby revoked.
4 Voting Agreement
2.2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Shareholder as of the date of this Agreement as follows:
2.2.1 POWER AND AUTHORITY. The Company has all requisite corporate
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
2.2.2 AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Agreement have been duly authorized by all necessary Corporate action on
the part of the Company. This Agreement has been duly executed and
delivered by the Company.
2.2.3 NO CONFLICT. The execution and delivery of this Agreement by the
Company does not (a) conflict with or violate any agreement, law, rule,
regulation, order, judgment or decision or other instrument binding upon
the Company, 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 properties of the Company
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which the Company is a party or by which the Company or its properties are
bound or affected.
2.2.4 BINDING OBLIGATION. This Agreement is the legally valid and
binding obligation of the Company, enforceable against the Company 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.
2.2.5 SERIES A PREFERRED DIVIDENDS. As of the date of this agreement,
the amount of accrued but unpaid dividends on the Series A Preferred
Shares (excluding any dividends accrued during the current dividend
period) is zero.
SECTION 3. TRANSFER OF SUBJECT SHARES; ADDITIONAL SHARES.
The Shareholder agrees that this Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of the Subject Shares
shall pass, whether by operation of law or otherwise, including the
Shareholder's successors, and that the Shareholder will not sell, transfer or
assign, by operation of law or otherwise, the Subject Shares to any party unless
such party agrees in writing to be bound by the provisions of this Agreement. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Series A Preferred Shares, or the acquisition of additional Series
A Preferred Shares by the Shareholder, the obligations hereunder shall attach to
any additional Series A Preferred Shares issued to or acquired by the
Shareholder.
5 Voting Agreement
SECTION 4. ADDITIONAL COVENANTS OF THE COMPANY; CERTAIN TERMINATION
PROVISIONS
The Company hereby covenants and agrees with the Shareholder
as follows:
4.1 ABANDONMENT OF PLAN REQUIRES STOCKHOLDER APPROVAL. Following approval
of the Plan of Liquidation by the holders of the Company's Common Shares, the
Company shall not abandon the Plan of Liquidation except upon the affirmative
vote of the holders of at least two-thirds of the Common Shares.
4.2 PAYMENT OF SHAREHOLDER'S LEGAL EXPENSES. The Company shall pay all of
Shareholder's actual, reasonable legal expenses incurred in connection with
review, implementation and enforcement of this Agreement and review of the Plan
of Liquidation, upon presentation of an itemized invoice, PROVIDED that in no
event shall such payment exceed Fifty Thousand Dollars ($50,000).
4.3 COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT. Without limiting AEW's
rights under that certain Registration Rights Agreement, by and between the
Company and AEW, dated April 2, 1999, the Company shall at all times following
the Effective Date of the Plan of Liquidation comply with its obligations under
such agreement; PROVIDED that Company shall be entitled to deliver up to three
(3) Development Suspension Notices (as defined therein) in each 12 month period
under such agreement (inclusive of the number of Development Suspension Notices
that the Company would otherwise be entitled to deliver thereunder); and
PROVIDED FURTHER, that prior to the termination of this Agreement, the
Shareholder shall not request that the Company register the Series A Preferred
Shares under the Securities Exchange Act of 1934, as amended or list them on any
exchange or national market.
4.4 SHAREHOLDER CONSENT NEEDED FOR CERTAIN CHANGES TO PLAN. Following the
approval of the Plan of Liquidation by the holders of the Company's Common
Shares and the holders of the Series A Preferred Shares (pursuant to Section 1)
the Company shall not amend the Plan of Liquidation in any way that,
individually or in the aggregate, materially and adversely affects the holders
of the Series A Preferred Shares or the Company's ability to redeem the Series A
Preferred Shares pursuant to the terms of this Agreement, without the consent of
the holders of a majority of the Series A Preferred Shares (which majority shall
include AEW if AEW holds at least 100,000 Series A Preferred Shares at the time
of approval).
4.5 PRESENTATION OF CERTAIN DOCUMENTS TO SHAREHOLDER; LIMITED RIGHT OF
TERMINATION.
4.5.1 LEGENDS AGREEMENT. The Shareholder acknowledges that it has
received and reviewed a copy of the proposed Legends Agreement (as
mentioned in Section 4 of the Plan of Liquidation) and the Company and
Operating Partnership agree to provide the Shareholder a copy of the
definitive Legends Agreement. In the event the definitive Legends
Agreement differs materially and adversely from the draft of the Legends
Agreement most recently provided to the Shareholder prior to the execution
of this Voting Agreement, the Shareholder shall have the right, within
seven (7) business days of
6 Voting Agreement
the delivery of such definitive Legends Agreement to the Shareholder, upon
written notice to the Company, to terminate this Agreement (including the
proxy granted pursuant to Section 1.3 hereof).
4.5.2 SUBSEQUENT LETTERS OF INTENT AND DEFINITIVE AGREEMENTS. From
time to time after date of this Agreement, the Company shall present to
Shareholder, for its information only, copies of any letters of intent and
definitive agreements that relate to a disposition any of the assets
listed on EXHIBIT B hereto. Such delivery shall occur promptly after the
execution of such document by the Company or the Operating Partnership, on
the one hand, and the prospective purchaser on the other hand.
4.5.3 RIGHT TO TERMINATE BASED UPON INSUFFICIENT PROJECTED PROCEEDS.
In the event that, at the time the definitive proxy statement soliciting
the consent of the holders of the Company's Common Shares to the Plan of
Liquidation is filed with the Securities and Exchange Commission, the sum
of:
(a) the aggregate consideration (including, without limitation,
cash, repayment or assumption of indebtedness and redemption of OP
Units) payable to the Company and/or the Operating Partnership
pursuant to the signed definitive agreements delivered (or
deliverable) with respect to the assets listed on EXHIBIT B hereto
pursuant to Section 4.5.2, PLUS
(b) for each of the assets listed in EXHIBIT B for which no
signed definitive agreements were delivered (or deliverable) pursuant
to Section 4.5.2, the estimated sales prices used by the Company for
purposes of estimating the lower end of the range of estimated
liquidation proceeds in the definitive proxy,
is less than One Hundred Eighty Million Dollars ($180,000,000), the
Shareholder shall have the right, upon written notice to the Company
delivered within seven (7) business days of the date that such definitive
proxy statement has been delivered to the Shareholder, to terminate this
Agreement (including the proxy granted pursuant to Section 1.3 hereof).
Upon request from the Shareholder, the Company will deliver evidence
supporting in reasonable detail the calculation of the amount described in
clause (b) of this Section 4.5.3. The value of distributions in kind in
redemption of OP Units shall be reasonably determined by the Company, but
shall not exceed $15.00 per OP Unit.
4.5.4 MISCELLANEOUS. The rights set forth in this Section 4.5 shall be
personal to AEW, shall not transfer to its successors in interest, if any,
and shall terminate at such time as AEW holds fewer than 100,000 Series A
Preferred Shares. The Company shall alert AEW prior to delivering any
material, non-public information to AEW and AEW shall have the opportunity
not to accept any such information. AEW agrees that any information
delivered pursuant to this Section 4.5 shall be subject to the
Confidentiality Agreement by and between AEW and the Company dated
December 19, 2000.
7 Voting Agreement
4.6 RESTRICTIONS ON PAYING DISTRIBUTIONS AND OP UNIT REDEMPTIONS. Without
the consent of the holders of a majority of the outstanding Series A Preferred
Shares, the Company and the Operating Partnership shall not make any dividend or
distribution to any of their stockholders or holders of Operating Partnership
Units ("OP Units"), respectively, other than (a) inter-company payments between
the Company, the Operating Partnership and their consolidated subsidiaries; (b)
payment of the Liquidation Preference by the Company to holders of the Series A
Preferred Shares; (c) payment of full stated dividends on the Series A Preferred
Shares; (d) payment of full stated distributions on the Series A, B and C
Preferred OP Units of the Operating Partnership; (e) payment of a $0.25 dividend
per Common Share and a $0.25 distribution per common OP Unit per quarter for
each of the first and second fiscal quarters of 2001; (f) redemptions or
purchases of OP Units in connection with asset dispositions, PROVIDED that such
redemptions do not total more than $60 million dollars in the aggregate (for
this purpose, the value of distributions in kind in redemption of OP Units shall
be reasonably determined by the Company, but shall not exceed $15.00 per OP
Unit); (g) dividends and distributions necessary to maintain the Company's
status as a real estate investment trust ("REIT") under the Internal Revenue
Code of 1996, as amended (the "Code"); and (h) additional dividends and
distributions in amounts no greater than that required to allow the Company and
the Operating Partnership to satisfy the distribution requirements set forth in
Section 857(a) of the Code, and avoid, to the extent possible, the imposition of
income tax under Section 857(b) of the Code and the imposition of excise tax
under Section 4981 of the Code.
4.7 DEADLINE FOR FINAL DISTRIBUTION. If the Plan of Liquidation is
approved by the holders of the Company's Common Shares in accordance with its
terms and not subsequently abandoned in accordance with Section 4.1 of this
Agreement, the Company shall complete the Final Distribution (as defined in the
Plan of Liquidation) no later than two years after the effective date of the
Plan of Liquidation (as "effective date" is defined therein).
4.8 ADDITIONAL SERIES A PREFERRED SHARES. The Company shall not, without
the consent of the holders of two-thirds of the outstanding Series A Preferred
Shares, authorize or issue any additional Series A Preferred Shares.
SECTION 5. REDEMPTION RIGHT UPON CERTAIN EVENTS
5.1 NOTICE. The Company agrees to promptly notify in writing each holder
of Series A Preferred Shares upon (a) the disposition of assets of the Company
or Operating Partnership identified on EXHIBIT C hereto, whether or not pursuant
to a plan of liquidation, resulting in gross proceeds to the Company and the
Operating Partnership of $300 million in the aggregate MINUS the aggregate
principal amount of debt excluded by clause (ii)(2) of Section 5.2.1 (for this
purpose, the value of a distribution in kind in redemption of OP Units shall be
reasonably determined by the Company, but shall not exceed $15.00 per OP Unit),
(b) the commencement of any material lawsuit against the Company, (c) the entry
of a judgment in an amount not less than (and/or for consideration with a fair
market value in an amount not less than) $30,000,000 against the Company or the
Operating Partnership, (d) if the Company and/or the Operating Partnership have
repaid at least $100,000,000 principal amount of obligations owed under the
Amended and Restated Credit Agreement dated as of March 31, 1999, the entry of a
judgment in an amount not less than (and/or for consideration with a fair market
value in an amount not less
8 Voting Agreement
than) $15,000,000 against the Company or the Operating Partnership, (e) if the
Company and/or the Operating Partnership have repaid 100% of the principal
amount of obligations owed under the Amended and Restated Credit Agreement dated
as of March 31, 1999, the entry of a judgment in an amount not less than (and/or
for consideration with a fair market value in an amount not less than)
$10,000,000 against the Company or the Operating Partnership or (f) the
acceleration of the obligations of the Operating Partnership under its Amended
and Restated Credit Agreement dated as of March 31, 1999, with the lenders named
therein and Bank of America, N.A., as agent, and any refinancing or replacement
thereof.
5.2 REDEMPTION AND TERMINATION.
5.2.1 REDEMPTION RIGHT. If the Plan of Liquidation shall be approved
by the holders of the Company's Common Shares and the holders of the
Series A Preferred Shares, the holders of a majority of the Series A
Preferred Shares shall have the right to require the Company to redeem
all, but not less than all, of the outstanding Series A Preferred Shares
for the Liquidation Preference upon the occurrence of any of the events
set forth below in this Section 5.2.1. Such right must be elected by the
holders of a majority of the outstanding Series A Preferred Shares with
notice to the Company in writing, and such redemption must occur no more
than 60 days after the date of such written notice.
(i) The Company either (x) breaches Section 4.1, 4.4, 4.6, 4.7
or 4.8 of this Agreement, or (y) materially breaches any other
provision of this Agreement and, (with respect to this clause (y))
such breach is not cured by the Company within 15 days of written
notice from Shareholder to the Company of such breach or waived by the
holders of a majority of the Series A Preferred Shares (such majority
to include AEW if AEW holds at least 100,000 Series A Preferred Shares
at the time of such waiver);
(ii) the event identified in Section 5.1(a) has occurred and the
Company and Operating Partnership have not, within 30 days,
permanently repaid all debt for borrowed money of the Company and
Operating Partnership (other than (1) routine trade creditor debt not
yet due and (2) the debt listed on EXHIBIT D hereto, if and to the
extent that the repayment of such debt listed on EXHIBIT D hereto
would be contractually prohibited or would result in the incurrence of
tax indemnification obligations);
(iii) an event described in Section 5.1(c) or (d) or (e) has
occurred;
(iv) the event described in Section 5.1(f) has occurred; or
(v) both (1) the event described in Section 5.1(f) occurred
prior to the date on which the holders of the Company's Common Shares
and the holders of the Series A Preferred Shares approved the Plan of
Liquidation and (2) such event is still outstanding on the date of
such approval.
9 Voting Agreement
5.2.2 REMEDIES UPON FAILURE TO REDEEM. The Company shall be obligated
to honor a demand for redemption under Section 5.2.1 only to the extent it
has legally available funds therefor. In the event that the Company the
does not honor such redemption (whether or not it has funds legally
available therefor):
(i) the Series A Preferred Shares shall remain outstanding, the
Company shall have a continuing obligation to make the redemption
payment;
(ii) the holders of the Series A Preferred Shares shall have the
right to elect two directors to the Board of Directors of the Company
(and the Company shall use commercially reasonable efforts to take
such steps as are necessary under Maryland law and its charter and
bylaws to enlarge its board and appoint such directors), PROVIDED,
HOWEVER, that this right shall lapse and such directors shall resign
upon the complete redemption of the Series A Preferred Shares; and
PROVIDED, FURTHER, that in the event that the holders of the Series A
Preferred Shares also have the right to elect two directors pursuant
to Section 12(b) of the Articles Supplementary, such election rights
shall not be cumulative and the directors elected pursuant to this
Agreement and such Section 12(b) shall be deemed to be the same two
individuals, with one vote each; and
(iii) unless the right to require the Company to redeem the
Series A Preferred Shares arose under Section 5.2.1(iv) hereof, the
Series A Preferred Shares' and the Series A Preferred OP Units' stated
dividend rate shall increase from 9.25% to 12.50% from and after the
date of such payment default, such that they accrue dividends at a
rate of $3.125 per annum (equivalent to $0.78125 per quarter) per
share. If the holders of the Series A Preferred Shares have required
the Company to redeem the Series A Preferred Shares pursuant to
Section 5.2.1(iv) hereof, and an event thereafter occurs that would
entitle the holders of the Series A Preferred Shares to redeem them
pursuant to any other clause of Section 5.2.1 (including, without
limitation, a judgment rendered in connection with the obligations
owed under the Company's Amended and Restated Credit Agreement dated
as of March 31, 1999), from and after the occurrence of such event,
the Series A Preferred Shares' and the Series A Preferred OP Units'
stated dividend rate shall increase from 9.25% to 12.50% from and
after the date of such payment default, such that they accrue
dividends at a rate of $3.125 per annum (equivalent to $0.78125 per
quarter) per share.
5.2.3 TERMINATION RIGHT. If, prior to the approval of the Plan of
Liquidation by the holders of the Company's Common Shares and the holders
of the Series A Preferred Shares, any of the events set forth in Section
5.2.1 (other than that set forth in clause (iv) thereof) occurs, the
holders of a majority of the Series A Preferred Shares shall have the
right to terminate this Agreement. Such right must be elected by the
holders of a majority of the outstanding Series A Preferred Shares with
notice to the Company in writing.
10 Voting Agreement
SECTION 6. MISCELLANEOUS.
6.1 AMENDMENTS. This Agreement may not be amended except by an instrument
in writing signed by the Company and the holders of at least two-thirds of the
Series A Preferred Shares.
6.2 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by the Shareholder, 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 Shareholder, except that
(i) subject to Section 3 hereof, the Shareholder may assign its rights,
interests and obligations hereunder in connection with the transfer of the
Subject Shares and (ii) subject to the consent of the Shareholder, 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. 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. The Company may enforce this agreement
against subsequent transferees of the Subject Shares.
6.3 FURTHER ASSURANCES. Each party 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 other party may request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
6.4 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.
6.5 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.
6.6 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.
6.7 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.
6.8 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
11 Voting Agreement
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Agreement shall become
effective upon the execution of a counterpart of this Agreement by the Company
and the Shareholder
6.9 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.
6.10 TERMINATION. This Agreement shall terminate and neither party shall
have any continuing obligations to the other party hereunder upon the earliest
to occur of (a) written notice from the Company to the Shareholder that the
Company's board of directors has resolved not to present the Plan of Liquidation
to the holders of the Company's Common Shares for approval; (b) October 1, 2001,
if the Company has not obtained approval by the holders of the Company's Common
Shares of the Plan of Liquidation before such date; (c) payment by the Company
in full of the Liquidation Preference to the holders of the Series A Preferred
Shares and the cancellation of such shares; (d) revocation of the proxy pursuant
to Section 1.3.3 hereof; (e) termination by the Shareholder pursuant to Section
4.5 hereof; (f) termination by the holders of the Series A Preferred Shares
pursuant to Section 5.2.3 hereof.
[Signature page follows.]
12 Voting Agreement
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
--------------------------
W. Xxxxxxx Xxxxx, XX
President
Notice Address: 00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, XX 00000
Attn: President
SHAREHOLDER: AEW TARGETED SECURITIES FUND, L.P.
By: AEW TSF, L.L.C.
Its: General Partner
By: AEW TSF, INC.
Its: Managing Member
By: /s/ XXXXXXX X. XXXXXXX
--------------------------
Xxxxxxx X. Xxxxxxx
Vice-President
Notice Address: AEW Capital Management, Inc.
World Trade Xxxxxx
Xxx Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
S-1 Voting Agreement
EXHIBIT A
GOLF TRUST OF AMERICA, INC.
PLAN OF LIQUIDATION AND DISSOLUTION
[DISCUSSION DRAFT ONLY]
1. APPROVAL AND EFFECTIVENESS OF PLAN. This Plan of Liquidation and
Dissolution (this "Plan") of Golf Trust of America, Inc., a Maryland corporation
(the "Corporation"), has been approved by the Corporation's Board of Directors
as being advisable and in the best interests of the Corporation and its
stockholders. The Board of Directors has directed that the Plan be submitted to
the stockholders of the Corporation for approval. The Plan shall become
effective upon approval of the Plan by the common stockholders of the
Corporation in the manner and by the vote required by law and by the charter of
the Corporation and approval of the plan by the preferred stockholders of the
Corporation in the manner and by the vote required by law and by Section 12(f)
of the Articles Supplementary Classifying and Designating 800,000 shares of
Preferred Stock as 9.25% Series A Cumulative Convertible Preferred Stock of the
Corporation (the "Articles Supplementary"). The date of the stockholders'
approval is hereinafter referred to as the "Effective Date."
2. VOLUNTARY LIQUIDATION AND DISSOLUTION. On and after the Effective Date,
the Corporation shall voluntarily liquidate and dissolve in accordance with
Section 331 of the Internal Revenue Code of 1986, as amended and in accordance
with Maryland General Corporation Law ("MGCL"). Pursuant to the Plan, the Board
of Directors shall cause the Corporation to sell, convey, transfer and deliver
or otherwise dispose of all of the assets of the Corporation in one or more
transactions, without further approval of the stockholders.
3. CHARTER AMENDMENT. The Corporation's Articles of Amendment and
Restatement, as amended, are hereby amended by redesignating Section 2(h) of
Article V as subsection 2(h)(i) and inserting the following new subsection
2(h)(ii) immediately thereafter:
"(ii) PLAN OF LIQUIDATION. Nothing in this Article V, or in Article IX
hereof, or elsewhere in this Charter shall prevent the Corporation or its
board from taking any action pursuant to or in accordance with a plan of
liquidation (I.E., any plan providing for the disposition of substantially
all of the Corporation's assets and/or its dissolution) approved by the
requisite vote of stockholders entitled to vote thereon; PROVIDED, HOWEVER
that the voting requirement set forth in Article Third, Section 12(f),
Clause (iii) of the Series A Preferred Stock Articles Supplementary shall
continue to apply unless specifically waived by the holders of the
outstanding shares of Series A Cumulative Convertible Preferred Stock in
the case of any particular plan of liquidation."
4. AUTHORIZATION OF EXISTING SALE AGREEMENTS. The Corporation, acting for
itself or in its capacity as sole stockholder of GTA GP, Inc., a Maryland
corporation ("GTA GP"), which is the general partner of Golf Trust of America,
L.P., a Delaware limited partnership (the "Operating Partnership"), as
appropriate, is authorized to enter into and perform its obligations under, and
cause GTA GP as general partner to cause the Operating Partnership to enter into
and perform its obligations under, the following contracts (the "Agreements")
relating to the disposition of assets: (i) the Purchase and Sale Agreement
between the Operating Partnership and Legends, and (ii) the [LIST ANY OTHER
AGREEMENTS THAT ARE PART OF THE PLAN AT THE TIME OF THE PROXY].
5. SALES OF OTHER ASSETS.
(a) The Corporation, acting for itself or in its capacity as sole
stockholder of GTA GP and GTA LP, Inc., a Maryland corporation ("GTA LP"),
as appropriate, is authorized to sell or to cause the Operating
Partnership and the subsidiaries of the Corporation and the Operating
Partnership to sell any and all of their assets remaining after the
consummation of the transactions contemplated by the Agreements for cash
or such other assets as may be conveniently distributed to the
stockholders, upon such terms as the Board of Directors of the Corporation
may deem advisable; and
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(b) The Corporation and the Operating Partnership and their respective
subsidiaries shall follow the following procedures (if applicable by their
terms) in connection with each transfer of assets:
(i) The authorization of, or the obligations of the transferring
party to transfer assets pursuant to, any sale agreement that the
Board of Directors expects will result in net proceeds of $50,000,000
or more shall be conditioned on receipt by the Board of Directors, or
the Corporation, or the board of directors or GTA GP, or GTA GP or the
Operating Partnership (each an "Eligible Addressee") of either (A) an
opinion from a nationally recognized investment bank to the effect
that such sale is fair to the party receiving the consideration from a
financial point of view or (B) an appraisal of such asset showing that
proposed sale price is within (or above) the appraiser's range of
estimated values for the asset, or (C) other evidence satisfactory to
the Board of Directors that the proposed sale is in the best interest
of the Corporation and its stockholders.
(ii)The authorization of, or the obligations of the transferring
party to transfer assets pursuant to, any sale agreement that provides
for gross proceeds that fall below the low end of the range of gross
proceeds that the Corporation's management estimated would be received
for such assets (as set forth in the materials provided to the Board
of Directors at the time the Board approved the version of this Plan
submitted to stockholders), shall be conditioned on receipt by an
Eligible Addressee of either (A) an opinion from a nationally
recognized investment bank to the effect that such sale is fair to the
party receiving the consideration from a financial point of view or
(B) an appraisal of such asset showing that proposed sale price is
within (or above) the appraiser's range of estimated values for the
asset, or (C) other evidence satisfactory to the Board of Directors
that the proposed sale is in the best interest of the Corporation and
its stockholders.
6. PAYMENT OF CREDITORS; DISTRIBUTIONS TO STOCKHOLDERS. Subject to Section
10 hereof, the Board of Directors and such officers of the Corporation as the
Board of Directors may authorize and direct are authorized and directed to
proceed promptly to (i) wind up the affairs of the Corporation (including
without limitation the affairs of its subsidiaries, the Operating Partnership
and its subsidiaries); (ii) collect its assets; (iii) convey and dispose of such
of its assets as are not to be distributed in kind to its stockholders; (iv) pay
or create a reserve fund for the payment of or otherwise adequately provide for
all of the liabilities and obligations of the Corporation and the Operating
Partnership and their subsidiaries; (v) pay all expenses incidental to this
Plan, including all counsel fees, accountants' fees, and such other fees and
taxes as are necessary to effectuate this Plan; (vi) cause the Operating
Partnership to distribute its remaining assets, either in cash or in kind, to
the limited and general partners of the Operating Partnership, in one or more
distributions in cancellation or redemption of their partnership interests, in
accordance with the terms and provisions of the agreement of limited partnership
for the Operating Partnership, as amended; and (vii) distribute all the
remaining assets of the Corporation, either in cash or in kind, to the
stockholders in cancellation or redemption of their stock in one or more
distributions, in accordance with the terms and provisions of the charter of the
Corporation, as amended. Upon the sale or other disposition of the assets of the
Corporation, and the payment or provision for all of the liabilities and
obligations of the Corporation, the corporation will be deemed to have
liquidated, and the Corporation will redeem all of the outstanding shares of
Preferred Stock that are or are then outstanding, subject to and in accordance
with the charter of the Corporation and applicable law.
7. RESERVE FUND. The Corporation, acting for itself or in its capacity as
sole stockholder of GTA GP, as appropriate, is authorized, but not required, to
establish or to cause the Operating Partnership to establish, one or more
reserve funds in a reasonable amount to be determined by the Board of Directors
within its discretion, to meet known liabilities and liquidating expenses and
estimated unascertained or contingent liabilities and expenses, and/or to
provide for payment of the liquidation preference to holders of preferred
interests in the Corporation and the Operating Partnership (provided that
creation of such fund shall not relieve the Corporation or the Operating
Partnership, as applicable, of any obligation to make payment to such preferred
securityholders, until such payment is actually made to such securityholders),
in each case if the Board of Directors of the Corporation deems such reserves
desirable. Creation of a reserve fund may be accomplished by a recording in the
Corporation's accounting ledgers of any accounting or bookkeeping entry which
indicates the allocation of funds so set aside for payment. The Corporation is
also authorized, but not required, to create a reserve fund by placing cash or
property in escrow
A-2 Voting Agreement
with an escrow agent for a specified term together with payment instructions.
Any undistributed amounts remaining in such an escrowed reserve fund at the end
of its term shall be returned to the Corporation or the Liquidating Trust
referred to below, or such other successor in interest to the Corporation as may
then exist or, if no such entity is then in existence, shall be delivered to the
abandoned property unit of the Maryland State Comptroller's office. The
Corporation may also create a reserve fund by any other reasonable means.
8. INSURANCE POLICIES. The Corporation is authorized, but not required, to
procure for itself and/or to cause GTA GP, as general partner to procure for the
Operating Partnership, as appropriate, one or more insurance policies in a
reasonable amount to be determined by the Board of Directors within its
discretion, to cover unknown or unpaid liabilities and liquidating expenses and
unascertained or contingent liabilities and expenses, if the Board of Directors
of the Corporation deems such insurance policies desirable.
9. ARTICLES OF DISSOLUTION. The Board of Directors and officers of the
Corporation are authorized and directed, when appropriate, to file articles of
dissolution with the Department of Assessments and Taxation of the State of
Maryland (the "Department") pursuant to Section 3-407 of the Maryland General
Corporation Law and to take all other appropriate and necessary action to
dissolve the Corporation under Maryland law. Prior to filing articles of
dissolution, the Corporation shall give notice to its known creditors as
required by Section 3-404 of MGCL and satisfy all other prerequisites to such
filing under Maryland law. Upon the Department's acceptance of the articles of
dissolution for record, (i) as provided by Section 3-408(a) of the MGCL, the
Corporation shall be dissolved; however (ii) as provided by Section 3-408(b) of
the MGCL, the Corporation shall continue to exist for the purpose of paying,
satisfying and discharging any existing debts or obligations, collecting and
distributing its assets, and doing all other acts required to liquidate and wind
up its business and affairs, and (iii) the directors of the Corporation shall,
by operation of Section 3-410 of the MGCL, become trustees of the assets of the
Corporation for purposes of liquidation (and from and after such date, the terms
"directors" or "Board of Directors" as used in this Plan shall refer to such
trustees and the board of such trustees, respectively).
10. EFFECT AND TIMING OF DISTRIBUTIONS. The Corporation shall redeem the
Preferred Stock in accordance with the Voting Agreement by and between the
Corporation and the initial holder of the Preferred Stock (which Voting
Agreement was filed with the Company's Current Report on Form 8-K, dated ____),
as the same may be amended from time to time in accordance with its terms. Upon
payment to holders of Preferred Stock of the amounts to which such holders are
entitled upon a liquidation and dissolution of the Corporation, or the earlier
redemption of the Preferred Stock, all in accordance with and subject to the
provisions of the Charter of the Corporation and such Voting Agreement, the
issued and outstanding shares of Preferred Stock of the Corporation will be
canceled and no longer deemed outstanding and all rights of the holders thereof
as stockholders of the Corporation shall cease and terminate. Upon the complete
distribution of all assets of the Corporation remaining after the Corporation
makes required payments to holders of the outstanding shares of Preferred Stock,
or redeems the outstanding shares of Preferred Stock, to the holders of
outstanding shares of Common Stock of the Corporation (the "Final
Distribution"), all such shares of Common Stock of the Corporation will be
canceled and no longer deemed outstanding and all rights of the holders thereof
as stockholders of the Corporation shall cease and terminate. The Corporation
shall use commercially reasonable efforts to cause the liquidation and
dissolution of the Corporation to occur, to make all required payments to the
holders of outstanding shares of Preferred Stock or redeem the outstanding
shares of Preferred Stock, and to make the Final Distribution to holders of
outstanding shares of Common Stock no later than the second anniversary of the
Effective Date.
11. CORPORATE GOVERNANCE FOLLOWING DISSOLUTION, PENDING THE FINAL
DISTRIBUTION. After the filing of the articles of dissolution, the Board of
Directors may cause the Corporation to cease to hold annual meetings or to hold
annual elections for directors, to the extent that such cessation is permissible
by applicable law. In the event that the Corporation ceases to hold annual
meetings or to hold annual elections for directors, from and after such
cessation to the date of the Final Distribution, (i) upon the resignation of any
director, the vacancy shall be filled by the vote of the remaining directors;
(ii) holders of the requisite number of shares may call a special meeting of
stockholders, as provided in the Corporation's bylaws; (iii) at any special
meeting, holders of at least two-third (2/3) of the shares of Common Stock may
remove any director, with or without cause, and thereafter the vacancy shall be
filled by the vote of a plurality of the shares of Common Stock; and (iv) in all
other respects, the Corporation shall continue to be governed by its charter and
bylaws, except as otherwise provided in this Plan or required by applicable law.
A-3 Voting Agreement
12. FINAL DISTRIBUTION AS DISTRIBUTION IN KIND OF LIQUIDATING TRUST
BENEFICIAL INTERESTS. In the event that (i) the Board of Directors deems it
necessary or advisable in order to preserve the Corporation's status as a REIT
or otherwise avoid the payment of income tax, or (ii) the Board of Directors
deems it necessary or advisable in order to enable the Corporation to terminate
its obligation to file quarterly reports and audited annual financial statements
with the Securities and Exchange Commission (the "Commission") or (iii) the
Board of Directors determines it is otherwise advantageous or appropriate to do
so, the Board of Directors may cause the Corporation make the Final Distribution
as a distribution in kind of beneficial interests in a trust (the "Liquidating
Trust"), at such time as it deems appropriate in its sole discretion (provided
only that the Preferred Stock and any remaining outstanding preferred OP Units
have been completely redeemed prior to the transfer and assignment mentioned
below), substantially as follows:
(a) The Corporation may create the Liquidating Trust under Maryland
statutory or common law and may transfer and assign and may cause GTA GP,
as general partner, to cause the Operating Partnership to transfer and
assign, to the Liquidating Trust all of the assets of the Corporation, the
Operating Partnership and their subsidiaries of every sort whatsoever,
including their unsold properties, assets, claims, contingent claims and
causes of action, subject to all of their unsatisfied debts, liabilities
and expenses, known or unknown, contingent or otherwise. From and after
the date of such transfer and assignment of assets (subject to
liabilities) to the Liquidating Trust, the Corporation, the Operating
Partnership and their subsidiaries shall have no interest of any character
in and to any such assets and all of such assets shall thereafter by held
by the Liquidating Trust.
(b) Simultaneously with such transfer and assignment, shares of common
beneficial interest in the Liquidating Trust shall be deemed to be
distributed to each holder of shares of Common Stock and units of
partnership interest in the Operating Partnership ("OP Units"), all of
whom shall automatically and without any need for notice or presentment be
deemed to hold corresponding shares of common beneficial interest in the
Liquidating Trust. Such deemed distribution of shares of beneficial
interest shall constitute the Final Distribution of all of the assets of
the Corporation to its stockholders under paragraph 10 of this Plan.
(c) The declaration of trust or other instrument governing the
Liquidating Trust (the "Declaration of Trust") shall provide among other
things that, immediately following such transfer, assignment and
distribution, each shares of common beneficial interest in the Liquidating
Trust shall have a claim upon the assets of the Liquidating Trust that is
the substantial economic equivalent of the claims each share of Common
Stock and each OP Unit, had upon the combined assets of the Corporation
and the Operating Partnership, immediately prior to the transfer,
assignment and distribution.
(d) The initial trustees of the Liquidating Trust shall be designated
by the Board of Directors of the Corporation.
(e) The Declaration of Trust shall also provide that the Liquidating
Trust's activities shall be limited to conserving, protecting and selling
the assets transferred to it and distributing the proceeds therefrom,
including holding such assets for the benefit of the holders of common
beneficial interests in the Trust, temporarily investing such proceeds and
collecting income therefrom, providing for the debts, liabilities and
expenses of the Corporation and the Operating Partnership, making
liquidating distributions to the holders of shares of common beneficial
interest in the Trust and taking other actions as may be deemed necessary
or appropriate by the trustees to conserve and protect the assets of the
Trust and provide for the orderly liquidation thereof.
(f) The Declaration of Trust shall also provide that the Liquidating
Trust, as successor to the Corporation, shall not revoke the Liquidating
Trust's REIT election nor shall its trustees take any action to terminate
its status as a REIT, except upon the affirmative vote of holders of
two-thirds (2/3) of the common beneficial interests in the Liquidating
Trust.
(g) The Declaration of Trust shall also provide (i) that holders of at
least a majority of the common shares of beneficial interest may require
the trustees to call a special meeting of holders of beneficial interest;
(ii) that holders of a majority of the common shares of beneficial
interest may vote to remove one or more
A-4 Voting Agreement
trustees of the Liquidating Trust and elect successor trustees; (iii) that
holders of a majority of the common shares of beneficial interest may vote
to amend the Declaration of Trust, consistent with this Plan, provided
that no such amendment may adversely affect the rights of the holders of
common shares of beneficial interests to receive their pro rata share of
the property held by the Liquidating Trust at the time of final
distribution.
(h) In the discretion of the Board of Directors, the Declaration of
Trust may also provide (i) that shares of beneficial interest in the
Liquidating Trust will not be transferable (except by will, intestate
succession or operation of law); (ii) that beneficial interests in the
Liquidating Trust will not be represented by certificates; (iii) that the
Liquidating Trust will have a finite life and will terminate upon the
earlier of the complete distribution of the trust corpus or a specified
number of years from the date that the Corporation's assets were first
transferred to it, subject to extensions of determinate duration; and (iv)
that the Liquidating Trust may distribute annual financial statements,
which need not be audited, to holders of its beneficial interests, (which
statements, if prepared and distributed, shall be filed under cover of
Form 10-K under the Corporation's Commission file number to the extent the
Liquidating Trust is eligible to do so) but need not prepare or distribute
any quarterly financial statements.
(i) The Liquidating Trust shall be of such type, and the Declaration
of Trust shall be in such form and contain such terms, conditions and
provisions (which shall be materially consistent with this paragraph 12)
as the Board of Directors may approve.
(j) Approval of this Plan shall constitute the approval by the
stockholders of the transfer and assignment to the Liquidating Trust, the
form and substance of the Declaration of Trust as approved by the Board of
Directors and the appointment of trustees selected by the Board of
Directors.
13. DELISTING FROM AMEX; TERMINATING EXCHANGE ACT REGISTRATION.
Immediately prior to the transfer to the Liquidating Trust, or at such other
time as the Board of Directors considers appropriate, the Board of Directors and
officers of the Corporation are authorized to cause the Corporation's common
stock to be delisted from the American Stock Exchange and to cause the
Corporation to file a Form 15 (or take other appropriate action ) to terminate
the registration of its Common Stock and Preferred Stock under the Securities
Exchange Act of 1934, as amended.
14. INTERPRETATION; GENERAL AUTHORITY. The Board of Directors of the
Corporation, the trustees of the Liquidating Trust and such officers of the
Corporation as the Board of Directors or such trustees may direct are hereby
authorized to interpret the provisions of the Plan and are hereby authorized and
directed to take such actions, to give such notices to creditors, stockholders
and governmental entities, to make such filings with governmental entities and
to execute such agreements, conveyances, assignments, transfers, certificates
and other documents, as may in their judgment be necessary or desirable in order
to wind up expeditiously the affairs of the Corporation and complete the
liquidation and dissolution thereof, including, without limitation, (i) the
execution of any contracts, deeds, assignments or other instruments necessary or
appropriate to sell or otherwise dispose of, any and all property of the
Corporation or the Liquidating Trust, whether real or personal, tangible or
intangible, (ii) the appointment of other persons to carry out any aspect of
this Plan, (iii) the temporary investment of funds in such medium as the Board
of Directors or such trustees may deem appropriate and (iv) the execution,
delivery and filing with the Department of Assessments and Taxation of Maryland
of articles of transfer pursuant to Section 3-107 of the MGCL. The death,
resignation or other disability of any director or officer of the Corporation or
trustee or officer of the Liquidating Trust shall not impair the authority of
the surviving or remaining directors or officers or trustees (or any persons
appointed as substitutes therefor) to exercise any of the powers provided for in
this Plan. Upon such death, resignation or other disability, the surviving or
remaining directors or trustees shall have the authority to fill the vacancy or
vacancies so created, but the failure to fill such vacancy or vacancies shall
not impair the authority of the surviving or remaining directors or officers or
trustees to exercise any of the powers provided for in this Plan.
15. GOVERNING LAW. The validity, interpretation, and performance of this
Plan shall be controlled by and construed under the laws of the State of
Maryland.
A-5 Voting Agreement
16. ABANDONMENT OF PLAN OF LIQUIDATION; AMENDMENT. Prior to approval of
this Plan by stockholders, the directors of the Corporation may withdraw and
abandon this Plan for any reason. Following approval of this Plan by
stockholders, it may not be abandoned by the Corporation except in accordance
with applicable law. Notwithstanding approval of the Plan by the stockholders of
the Corporation, the directors of the Corporation or the trustees of the
Liquidating Trust may modify or amend this Plan without further action by or
approval of the stockholders of the Corporation to the extent permitted under
then-current law.
A-6 Voting Agreement
EXHIBIT B
SCHEDULE OF PROJECTED SALE PRICES AND LOW-END ESTIMATED SALE
PRICES FOR CERTAIN MATERIAL ASSETS AND PORTFOLIOS
---------------------------------------- -------------------------------------- --------------------------------------
ASSET NAME PROJECTED SALE PRICE LOW-END ESTIMATED SALE PRICE
======================================== ====================================== ======================================
Xxxx Xxx Golf Club $** $**
---------------------------------------- -------------------------------------- --------------------------------------
Eagle Ridge ** **
---------------------------------------- -------------------------------------- --------------------------------------
Loan Agreement secured by
Participating Mortgage on the ** **
Innisbrook Resort
---------------------------------------- -------------------------------------- --------------------------------------
Emerald Dunes Portfolio* ** **
---------------------------------------- -------------------------------------- --------------------------------------
Sandpiper ** **
---------------------------------------- -------------------------------------- --------------------------------------
Northgate ** **
======================================== ====================================== ======================================
TOTALS $205,500,000 $**
---------------------------------------- -------------------------------------- --------------------------------------
*consisting of Emerald Dunes, Cypress Creek, Polo Trace and Lost Oaks
** The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
B-1 Voting Agreement
EXHIBIT C
SCHEDULE OF CERTAIN ASSETS
ASSET ACQUISITION DATE
----- ----------------
Black Bear 11/25/1997
Bonaventure 01/01/1998
Brentwood 12/14/1998
Club of the Country 10/17/1997
Cooks Creek 10/13/1998
Xxxxxxx Xxxxx 00/00/0000
Xxxxx Xxxxx 05/22/1998
Eagle Watch 09/26/1997
Emerald Dunes 02/01/1998
Heritage 02/12/1997
Innisbrook 06/20/1997
Legends 02/12/1997
Lost Oaks 10/03/1997
Metamora 05/11/1999
Mystic Creek 01/16/1998
Northgate 02/12/1997
Ohio Prestwick
Olde Atlanta 02/11/1997
Osage National 08/28/1998
Oyster Bay 02/12/1997
PalmDesert 12/22/1998
Persimmon Ridge
Xxxx Xxx 07/28/1999
Polo Trace 07/10/1998
Raintree
Royal New Kent 02/12/1997
Sandpiper 03/06/1998
Xxxxxxxxxxx 06/22/1998
Stonehenge 12/19/1997
Stonehouse 02/12/1997
Sweetwater 09/15/1998
Tiburon 08/18/1997
Tierra del Sol 05/29/1998
Wekiva 09/15/1998
Woodlands 02/12/1997
C-1 Voting Agreement
EXHIBIT D
SCHEDULE OF CERTAIN
LEASE OBLIGATIONS AND INDEBTEDNESS
LEASE OBLIGATIONS
The Company's obligations as lessee under the leases relating to the Mystic
Creek and Oyster Bay golf courses.
MORTGAGE AND OTHER INDEBTEDNESS
$12 million of debt secured by a mortgage on the Emerald Dunes golf course
$4.3 million of debt guaranteed by the contributor of the Northgate golf course
$10 million of debt owing to City National Bank in connection with the Xxxx Xxx
golf club
D-1 Voting Agreement
