[EXPLANATORY NOTE: The following Articles of Designation have been added to
Exhibit D to the Partnership Agreement by GTA GP, Inc., as general partner,
pursuant to the First Amendment to the Partnership Agreement, dated February
1, 1998, which is filed as Exhibit 10.1.2 to the Company's Form 10-K filed
March 31, 1998.]
GOLF TRUST OF AMERICA, L.P.
ARTICLES OF DESIGNATION
CLASSIFYING AND DESIGNATING 10,169 UNITS OF
8.29% SERIES B LIMITED PARTNERSHIP INTEREST
MAY 11, 1999
SECTION 1. NUMBER OF UNITS AND DESIGNATION. This series of preferred
partnership interest shall be designated as the 8.29% Series B Preferred
Partnership Interest (the "Series B Preferred Units") and the number of units
of 8.29% Series B Preferred Partnership Interest which shall initially
constitute such series shall be 10,169 units.
SECTION 2. DEFINITIONS. For purposes of the Series B Preferred Units,
the following terms shall have the meanings indicated:
"AMEX" shall mean the American Stock Exchange.
"Asset Disposition" shall mean a sale, transfer or capital lease (as
determined in accordance with GAAP) of all or substantially all of the assets of
the Partnership to a Person that is not an affiliate of the Corporation or the
Operating Partnership.
"Articles of Designation" shall mean these provisions in EXHIBIT D to
the Partnership Agreement recording the preferences, conversion and other
rights, voting powers, restrictions, limitations as to distributions,
qualifications, and terms and conditions of redemption and other terms and
conditions of the Series B Preferred Units.
"Board of Directors" shall mean the Board of Directors of the General
Partner or any committee authorized by such Board of Directors to perform any of
its responsibilities with respect to the Series B Preferred Units.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York are not required to be open.
"Common Share" shall mean one share of the common stock of GTA.
"Common Units" shall mean the common units of limited partnership
interest in the Partnership.
"Constituent Person" shall have the meaning set forth in paragraph (e)
of Section 7
Exhibit D - Series B Preferred Page 1
hereof.
"Conversion Price" shall mean the conversion price per Common Share
for which each Series B Preferred Unit is convertible. The initial conversion
price shall be $29.01 (equivalent to a conversion rate of 1.0 Common Units
for each Series B Preferred Unit).
"Corporation" means Golf Trust of America, Inc., a Maryland
Corporation.
"Current Market Price" shall mean, on any date specified herein, the
average of the Market Price during the period of the most recent twenty
consecutive trading days ending on such date.
"Distribution Payment Date" shall mean, with respect to each
Distribution Period, the 15th calendar day of January, April, July and
October, in each year, commencing on July 15, 1999; provided, however, that
if any Distribution Payment Date falls on any day other than a Business Day,
the distribution payment due on such Distribution Payment Date shall be paid
on the first Business Day immediately following such Distribution Payment
Date.
"Distribution Periods" shall mean quarterly distribution periods
commencing on January 1, April 1, July 1 and October 1 of each year and
ending on and including the day preceding the first day of the next
succeeding Distribution Period (other than the initial Distribution Period,
which shall commence on the Issue Date and end on and include June 30, 1999).
"GAAP" shall mean generally acceptable accounting practices,
consistently applied.
"Issue Date" shall mean the first date on which any Series B
Preferred Units are issued and sold.
"Junior Units" shall have the meaning set forth in paragraph (c) of
Section 9 hereof.
"Liquidation" shall mean a liquidation, dissolution or winding up of
the Corporation or the Partnership, whether voluntary or involuntary.
"Liquidation Event" shall mean (A) a Liquidation, or (B) an Asset
Disposition.
"Liquidation Preference" shall have the meaning set forth in
paragraph (a) of Section 4 hereof.
"Market Price" shall mean, with respect to the Common Shares on any
date, the last reported sales price, regular way on such day, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way on such day, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the American Stock Exchange ("AMEX") or, if the
Common Shares are not listed or admitted for trading on AMEX, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted for trading or, if the Common Shares are
not listed or admitted for trading on any national securities exchange, the
last quoted
Exhibit D - Series B Preferred Page 2
price, or if not so quoted, the average of the high bid and low asked prices
in the over-the-counter market, as reported by the NASD Automated Quotation
System or, if such system is no longer in use, the principal other automated
quotation system that may then be in use, or if the Common Shares are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker regularly making a market
in the Common Shares selected for such purpose by the Board of Directors or,
if there is no such professional market maker, such amount as an independent
investment banking firm selected by the Board of Directors determines to be
the value of a Common Share.
"Partnership" shall mean Golf Trust of America, L.P., a Delaware
limited partnership.
"Partnership Agreement" shall mean the First Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, dated February
12, 1997, as amended.
"Parity Units" shall have the meaning set forth in paragraph (b) of
Section 9 hereof.
"Person" shall mean any individual, firm, partnership, Corporation,
limited liability company or other entity, and shall include any successor
(by merger or otherwise) of such entity.
"Preferred Units" shall mean the Series B Preferred Units of limited
partnership interest in the Partnership in number and with rights and
preferences identical to the Series B Preferred Units.
"Senior Units" shall have the meaning set forth in paragraph (a) of
Section 9 hereof.
"Series B Preferred Unit" shall have the meaning set forth in
Section 1 hereof.
"Set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Partnership in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of a distribution or other distribution by the
Board of Directors, the allocation of funds to be so paid on any series or
class of units of partnership interest of the Partnership; PROVIDED, HOWEVER,
that if any funds for any class or series of Junior Units or any class or
series of Parity Units are placed in a separate account of the Partnership or
delivered to a disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series B Preferred Units shall mean placing such
funds in a separate account or delivering such funds to a disbursing, paying
or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the AMEX, or if such securities are not listed or admitted for
trading on the AMEX, on the principal national securities exchange on which
such securities are listed or admitted, or if not listed or admitted for
trading on any national securities exchange, on the Nasdaq National Market,
or if such securities are not quoted on such Nasdaq National Market, in the
applicable securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
Exhibit D - Series B Preferred Page 3
SECTION 3. DISTRIBUTIONS.
(a) The holders of the Series B Preferred Units shall be entitled
to receive, when, as and if authorized and declared by the General Partner
out of funds legally available for that purpose, distributions payable in
cash at the rate per annum equal to the greater of (i) $2.40 per Series B
Preferred Unit or (ii) an amount per Series B Preferred Unit equal to the
aggregate annual amount of cash distributions paid or payable, if any, with
respect to that number of Common Units, or portion thereof, into which each
Series B Preferred Unit is then convertible, in accordance with the terms of
these Articles of Designation (such greater amount, the "Annual Distribution
Rate"). The amount referred in clause (ii) of this subparagraph (a) with
respect to each Distribution Period shall be determined as of the applicable
Distribution Payment Date by multiplying the number of Common Units, or
portion thereof calculated to the fourth decimal point, into which a Series B
Preferred Unit would be convertible at the opening of business on such
Distribution Payment Date (based on the Conversion Price then in effect) by
the quarterly cash distribution payable or paid for such Distribution Period
in respect of a Common Unit outstanding as of the record date for the payment
of distributions on the Common Units with respect to such Distribution Period
and multiplying such product by four. Such distributions shall be cumulative
from the Issue Date, whether or not in any Distribution Period or Periods
there shall be funds of the Partnership legally available for the payment of
such distributions and shall be payable quarterly, when, as and if authorized
and declared by the Board of Directors, in arrears on Distribution Payment
Dates, commencing on the first Distribution Payment Date after the Issue
Date. Each such distribution shall be payable in arrears to the holders of
record of the Series B Preferred Units, as they appear on the records of the
Partnership at the close of business on each record date which shall not be
more than 30 days preceding the applicable Distribution Payment Date (the
"Distribution Payment Record Date"), as shall be fixed by the Board of
Directors. Accrued and unpaid distributions for any past Distribution Periods
may be authorized and declared and paid at any time, without reference to any
regular Distribution Payment Date, to holders of record on such date, which
shall not be more than 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors. The amount of accrued and unpaid
distributions on any Series B Preferred Unit at any date shall be the amount
of any distributions accumulated to and including such date, whether or not
earned or declared, which have not been paid in cash or set aside for
payment. Accumulated and unpaid distributions will not bear interest.
(b) The amount of distributions payable for each full Distribution
Period for the Series B Preferred Units shall be computed by dividing the
Annual Distribution Rate by four. The amount of distributions payable for the
initial Distribution Period, or any other period shorter or longer than a
full Distribution Period, on the Series B Preferred Units shall be computed
on the basis of twelve 30-day months and a 360-day year. Holders of Series B
Preferred Units shall not be entitled to any distributions, whether payable
in cash, property or stock, in excess of cumulative distributions, as herein
provided, on the Series B Preferred Units, plus any other amounts provided in
these Articles of Designation.
So long as any Series B Preferred Units are outstanding, no
distributions, except as described in the immediately following sentence,
shall be authorized and declared or
Exhibit D - Series B Preferred Page 4
paid or set apart for payment on any series or class or classes of Parity
Units for any period unless full cumulative distributions have been or
contemporaneously are authorized and declared and paid or authorized and
declared and a sum sufficient for the payment thereof set apart for such
payment on the Series B Preferred Units for all Distribution Periods
terminating on or prior to the distribution payment date for such class or
series of Parity Units. When distributions are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all distributions
authorized and declared upon Series B Preferred Units and all distributions
authorized and declared upon any other series or class or classes of Parity
Units shall be authorized and declared ratably in proportion to the
respective amounts of distributions accumulated and unpaid on the Series B
Preferred Units and such Parity Units.
(c) So long as any Series B Preferred Units are outstanding, no
distributions (other than distributions or distributions paid solely in Units
of, or options, warrants or rights to subscribe for or purchase Units of,
Junior Units) shall be authorized and declared or paid or set apart for
payment or other distribution authorized and declared or made upon Junior
Units, nor shall any Junior Units be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Units made in connection with an employee incentive or benefit plan of GTA or
any subsidiary or pursuant to the Redemption Right referred to in Section
8.05 of the Partnership Agreement), for any consideration (or any moneys to
be paid to or made available for a sinking fund for the redemption of any
such Units by the Partnership, directly or indirectly (except by conversion
into or exchange for Junior Units), unless in each case (i) the full
cumulative distributions on all outstanding Series B Preferred Units and any
other Parity Units of the Partnership shall have been paid or set apart for
payment for all past Distribution Periods with respect to the Series B
Preferred Units and all past distribution periods with respect to such Parity
Units and (ii) sufficient funds shall have been paid or set apart for the
payment of the distribution for the current Distribution Period with respect
to the Series B Preferred Units and any Parity Units.
(d) Any distribution payment made on the Series B Preferred Units
shall first be credited against the earliest accrued but unpaid distribution
due with respect to such Units which remains payable.
SECTION 4. LIQUIDATION PREFERENCE.
(a) In the event of any Liquidation Event, before any payment or
distribution of the assets of the Partnership (whether capital or surplus)
shall be made to or set apart for the holders of Junior Units, the holders of
Series B Preferred Units shall be entitled to receive a liquidation
preference which is an amount equal to the greater of (i) Twenty-Nine Dollars
and One Cent ($29.01) per Series B Preferred Unit plus distributions (whether
or not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holder (the "Liquidation Preference") or (ii) an amount
per Series B Preferred Unit equal to the amount which would have been payable
on the Common Units, or portion thereof, into which one Series B Preferred
Unit is then convertible had each Series B Preferred Unit been converted into
Common Units immediately prior to such Liquidation Event. The foregoing
amounts shall be subject to equitable adjustment whenever there shall occur a
stock distribution, stock split,
Exhibit D - Series B Preferred Page 5
combination, reorganization, recapitalization, reclassification or other
similar event involving a change in the capital structure of the Series B
Preferred Units. Until the holders of the Series B Preferred Units have been
paid in full the amounts owed pursuant to this Section 4(a), no payment will
be made to any holder of Junior Units upon a Liquidation Event. If, upon any
such Liquidation Event, the assets of the Partnership, or proceeds thereof,
distributable among the holders of Series B Preferred Units shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other Units of any class or series of Parity Units, then such
assets, or the proceeds thereof, shall be distributed among the holders of
such Series B Preferred Units and such other Parity Units ratably in
accordance with the amounts that would be payable on such Series B Preferred
Units and such other Parity Units if all amounts payable thereon were paid in
full.
(b) Subject to the rights of the holders of any Parity Units, upon
any Liquidation Event of the Partnership, after payment shall have been made
in full to the holders of Series B Preferred Units and any Parity Units, as
provided in this Section 4, any other series or class or classes of Junior
Units shall, subject to the respective terms thereof, be entitled to receive
any and all assets remaining to be paid or distributed, and the holders of
the Series B Preferred Units and any Parity Units shall not be entitled to
share therein.
SECTION 5. MANDATORY REDEMPTION. Upon the occurrence of a Liquidation,
the Partnership will automatically redeem for cash all, and not less than
all, of the outstanding shares of Series B Preferred Units at a price per
Series B Preferred Unit equal to the Liquidation Preference. In order to
effect the mandatory redemption, the Partnership will deliver written notice
to all holders of Series B Preferred Units (the "Mandatory Redemption
Notice"), such notice not be delivered later than 60 days prior to the
Liquidation, setting forth the date of the intended redemption and the
Liquidation Preference amount.
SECTION 6. REACQUIRED UNITS TO BE RETIRED. All Series B Preferred Units
which shall have been issued and reacquired in any manner by the Partnership
(including any Series B Preferred Units surrendered upon conversion as
described in Section 7) shall be retired and cancelled.
SECTION 7. CONVERSION. Holders of Series B Preferred Units shall have
the right to convert all or a portion of such shares into Common Units, as
follows:
(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series B Preferred Units shall have the right, at such
holder's option, at any time and from time to time, to convert such shares
into the number of fully paid and non-assessable Common Units obtained by
dividing the aggregate Liquidation Preference (excluding, for this purpose
only, any dividends accrued in respect of the then-current Distribution
Period) of such Series B Preferred Units by the Conversion Price (as in
effect at the time and on the date provided for in the last paragraph of
paragraph (b) of this Section 7) by surrendering such Series B Preferred
Units to be converted, such surrender to be made in the manner provided in
paragraph (b) of this Section 7; provided, however, that the right to convert
Series B Preferred
Exhibit D - Series B Preferred Page 6
Units called for redemption pursuant to Section 5 hereof shall terminate at
the close of business on the Redemption Date fixed for such redemption,
unless the Partnership shall default in making payment of any cash payable
upon such redemption under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each
Series B Preferred Unit to be converted shall provide written notice to the
Partnership that the holder thereof elects to convert such Series B Preferred
Units. Unless the Common Units issuable on conversion are to be issued in the
same name as the name in which such Series B Preferred Units are registered,
each share surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the Partnership, duly executed by the
holder or such holder's duly authorized attorney and an amount sufficient to
pay any transfer or similar tax (or evidence reasonably satisfactory to the
Partnership demonstrating that such taxes have been paid).
Holders of Series B Preferred Units at the close of business on any
Distribution Payment Record Date shall be entitled to receive the dividend
payable on such shares on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such Distribution Payment
Record Date and prior to such Distribution Payment Date. A holder of Series B
Preferred Units on a Distribution Payment Record Date who (or whose
transferee) tenders any such shares for conversion into Common Units on such
Distribution Payment Date will receive the distribution payable by the
Partnership on such Series B Preferred Units on such date.
As promptly as practicable, the Partnership shall issue and shall
deliver at such office to such holder, or send on such holder's written
order, a confirmation of the number of full Common Units issuable upon the
conversion of such Series B Preferred Units in accordance with the provisions
of this Section 7, and any fractional interest in respect of a Common Unit
arising upon such conversion shall be settled as provided in paragraph (c) of
this Section 7.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which notice is received by the
Partnership as aforesaid, and the Person or Persons in whose name or names
any certificate or certificates for Common Units shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of
the Common Units represented thereby at such time on such date, and such
conversion shall be at the Conversion Price in effect at such time and on
such date unless the stock transfer books of the Partnership shall be closed
on that date, in which event such Person or Persons shall be deemed to have
become such holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date on which
such Series B Preferred Units shall have been surrendered and such notice
received by the Partnership. If the Distribution Payment Record Date for the
Series B Preferred and Common Units do not coincide, and the preceding
sentence does not operate to ensure that a holder of Series B Preferred Units
whose shares are converted into Common Units does not receive dividends on
both the Series B Preferred Units and the Common Units into which such shares
are converted for the same Distribution Period, then notwithstanding anything
herein to the contrary, it is the intent of this paragraph that, and the
transfer agent is authorized to ensure that, no conversion after the earlier
of such record dates will
Exhibit D - Series B Preferred Page 7
be accepted until after the latter of such record dates.
(c) No fractional shares or scrip representing fractions of Common
Units shall be issued upon conversion of the Series B Preferred Units.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the conversion of a Series B Preferred Shares, the
Partnership shall pay to the holder of such Series B Preferred Shares an
amount in cash based upon the Current Market Price of Common Share on the
Trading Day immediately preceding the date of conversion. If more than one
Series B Preferred Shares shall be surrendered for conversion at one time by
the same holder, the number of full Common Units issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Series B
Preferred Units so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Partnership shall after the Issue Date (A) pay a
dividend or make a distribution on its shares of capital stock in Common
Units, (B) subdivide its outstanding Common Units into a greater number of
shares, (C) combine its outstanding Common Units into a smaller number of
shares or (D) issue any shares of capital stock by reclassification of its
Common Units, the Conversion Price in effect at the opening of business on
the day following the date fixed for the determination of shareholders
entitled to receive such dividend or distribution or at the opening of
business on the day following the day on which such subdivision, combination
or reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series B Preferred Units thereafter surrendered for
conversion shall be entitled to receive the number of Common Units that such
holder would have owned or have been entitled to receive after the happening
of any of the events described above, had such Series B Preferred Units been
converted immediately prior to the record date in the case of a dividend or
distribution or the effective date in the case of a subdivision, combination
or reclassification. An adjustment made pursuant to this subparagraph (i)
shall become effective immediately upon the opening of business on the day
next following the record date (subject to paragraph (h) below) in the case
of a dividend or distribution and shall become effective immediately upon the
opening of business on the day next following the effective date in the case
of a subdivision, combination or reclassification.
(ii) Notwithstanding anything else contained herein, if the
Partnership shall issue, after the Issue Date, rights, options or warrants to
all holders of Common Units entitling them (for a period expiring within 45
days after the record date mentioned below in this subparagraph (ii)) to
subscribe for or purchase Common Units at a price per share less than the
Market Price per Common Share on the record date for the determination of
stockholders entitled to receive such rights, options or warrants, then the
Conversion Price in effect at the opening of business on the day next
following such record date shall be adjusted to equal the price determined by
multiplying (A) the Conversion Price in effect immediately prior to the
opening of business on the day following the date fixed for such
determination by (B) a fraction, the numerator of which shall be the sum of
(I) the number of Common Units outstanding on the close of business on the
date fixed for such determination and (II) the number of Common Units
Exhibit D - Series B Preferred Page 8
that the aggregate proceeds to the Partnership from the exercise of such
rights, options or warrants for Common Units would purchase at such Market
Price, and the denominator of which shall be the sum of (I) the number of
Common Units outstanding on the close of business on the date fixed for such
determination and (II) the number of additional Common Units offered for
subscription or purchase pursuant to such rights, options or warrants. Such
adjustment shall become effective immediately upon the opening of business on
the day next following such record date (subject to paragraph (h) below). In
determining whether any rights, options or warrants entitle the holders of
Common Units to subscribe for or purchase Common Units at less than such
Market Price, there shall be taken into account any consideration received by
the Partnership upon issuance and upon exercise of such rights, options or
warrants, the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors, whose determination shall
be conclusive.
(iii) If the Corporation shall distribute to all holders of its
Common Shares any shares of capital stock of the Corporation (other than
Common Shares) or evidence of its indebtedness or assets (excluding cash
dividends or distributions paid out of assets based upon a fair valuation of
the assets, in excess of the sum of the liabilities of the Corporation and
the amount of stated capital attributable to Common Shares, determined on the
basis of the most recent annual consolidated cost basis and current value
basis and quarterly consolidated balance sheets of the Corporation and its
consolidated subsidiaries available at the time of the declaration of the
dividend or distribution) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights and warrants issued to all
holders of Common Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to subscribe for
or purchase Common Shares, which rights and warrants are referred to in and
treated under subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) called the "Securities"), then in each
case the Conversion Price shall be adjusted so that it shall equal the price
determined by multiplying (A) the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
shareholders entitled to receive such distribution by (B) a fraction, the
numerator of which shall be the Market Price per Common Share on the record
date mentioned below less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive) of the portion
of the shares of capital stock or assets or evidences of indebtedness so
distributed or of such rights or warrants applicable to one Common Share, and
the denominator of which shall be the Current Market Price per Common Share
on the record date mentioned below. Such adjustment shall become effective
immediately upon the opening of business on the day next following (subject
to paragraph (h) below) the record date for the determination of stockholders
entitled to receive such distribution. For the purposes of this subparagraph
(iii), the distribution of a Security, which is distributed not only to the
holders of the Common Shares on the date fixed for the determination of
shareholders entitled to such distribution of such Security, but also is
required to be distributed with each Common Share delivered to a Person
converting a Series B Preferred Share after such determination date, shall
not require an adjustment of the Conversion Price pursuant to this
subparagraph (iii); provided that on the date, if any, on which a person
converting a Series B Preferred Share would no longer be entitled to receive
such Security with a Common Share (other than as a result of the termination
of all such Securities), a distribution of such Securities shall be deemed to
have occurred, and the Conversion Price shall
Exhibit D - Series B Preferred Page 9
be adjusted as provided in this subparagraph (iii) (and such day shall be
deemed to be "the date fixed for the determination of the shareholders
entitled to receive such distribution" and "the record date" within the
meaning of the two preceding sentences).
The occurrence of a distribution or the occurrence of any other
event as a result of which holders of Series B Preferred Shares shall not be
entitled to receive rights, including exchange rights (the "Rights"),
pursuant to any shareholders protective rights agreement (the "Agreement")
that may be adopted by the Corporation as if such holders had converted such
shares into Common Shares immediately prior to the occurrence of such
distribution or event shall not be deemed a distribution of Securities for
the purposes of any Conversion Price adjustment pursuant to this subparagraph
(iii) or otherwise give rise to any Conversion Price adjustment pursuant to
this Section 7; provided, however, that in lieu of any adjustment to the
Conversion Price as a result of any such a distribution or occurrence, the
Corporation shall make provision so that Rights, to the extent issuable at
the time of conversion of any Series B Preferred Shares into Common Shares,
shall issue and attach to such Common Shares then issued upon conversion in
the amount and manner and to the extent and as provided in the Agreement in
respect of issuances at the time of Common Shares other than upon conversion.
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of at
least 1% in such price; provided, however, that any adjustments that by
reason of this subparagraph (iv) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment until made; and
provided, further, that any adjustment shall be required and made in
accordance with the provisions of this Section 7 (other than this
subparagraph (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Shares. Notwithstanding any other provisions of this Section 7, the
Corporation shall not be required to make any adjustment of the Conversion
Price for the issuance of any Common Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in Common
Shares under such plan. All calculations under this Section 7 shall be made
to the nearest cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded upward), as the case
may be. Anything in this paragraph (d) to the contrary notwithstanding, the
Corporation shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares, reclassification or
combination of shares, distribution of rights, options or warrants to
purchase stock or securities, or a distribution of other assets (other than
cash dividends) hereafter made by the Corporation to its shareholders shall
not be taxable.
(e) If the Partnership shall be a party to any transaction
(including without limitation a merger, consolidation, partnership interest
exchange, self tender offer for all or substantially all Common Units
outstanding, sale of all or substantially all of the Partnership's assets or
recapitalization of the Common Units (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which Common Units
shall be converted into the right to receive stock, securities or other
property (including cash or any combination thereof),
Exhibit D - Series B Preferred Page 10
each Series B Preferred Unit that is not redeemed or converted into the right
to receive stock, securities or other property in connection with such
Transaction shall thereafter be convertible into the kind and amount of Units
of stock, securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder of
that number of Common Units into which one Series B Preferred Unit was
convertible immediately prior to such Transaction, assuming such holder of
Common Units (i) is not a Person with which the Partnership consolidated or
into which the Partnership merged or which merged into the Partnership or to
which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an affiliate of a Constituent Person and (ii) failed to exercise
his or her rights of the election, if any, as to the kind or amount of stock,
securities and other property (including cash) receivable upon such
Transaction (provided that if the kind or amount of stock, securities and
other property (including cash) receivable upon such Transaction is not the
same for each Common Unit of the Partnership held immediately prior to such
Transaction by other than a Constituent Person or an affiliate thereof and in
respect of which such rights of election shall not have been exercised
("Non-Electing Unit"), then for the purpose of this paragraph (d) the kind
and amount of stock, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Unit shall be deemed to
be the kind and amount so receivable per Unit by a plurality of the
Non-Electing Units). The Partnership shall not be a party to any Transaction
unless the terms of such Transaction are consistent with the provisions of
this paragraph (c), and it shall not consent or agree to the occurrence of
any Transaction until the Partnership has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit of the
holders of the Series B Preferred Units that will contain provisions enabling
the holders of the Series B Preferred Units that remain outstanding after
such Transaction to convert their Series B Preferred Units into the
consideration received by holders of Common Units at the Conversion Price in
effect under the Articles of Designation immediately prior to such
Transaction. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) The Partnership covenants that any Common Units issued upon
conversion of the Series B Preferred Units shall be validly issued and fully
paid.
(g) Prior to the delivery of any securities that the Partnership
shall be obligated to deliver upon conversion of the Series B Preferred
Units, the Partnership shall comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval or consent to the delivery thereof, by any governmental
authority.
(h) The Partnership shall pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Units or other securities or property on conversion of the Series B
Preferred Units pursuant hereto; provided, however, that the Partnership
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issue or delivery of any Common Units or other
securities or property in a name other than that of the holder of the Series
B Preferred Units to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid
to the Partnership the amount of any such tax or established, to the
reasonable satisfaction of
Exhibit D - Series B Preferred Page 11
the Partnership, that such tax has been paid.
(i) In any case in which paragraph (d) of this Section 7 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Partnership may defer until the occurrence of
such event (A) issuing to the holder of any Series B Preferred Share
converted after such record date and before the occurrence of such event the
additional Common Units issuable upon such conversion by reason of the
adjustment required by such event over and above the Common Units issuable
upon such conversion before giving effect to such adjustment and (B) paying
to such holder any amount of cash in lieu of any fraction pursuant to
paragraph (c) of this Section 7.
(j) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of capital stock of the Partnership in a
reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 7. If any action or transaction would
require adjustment of the Conversion Price pursuant to more than one
paragraph of this Section 7, only one adjustment shall be made, and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(k) If the Partnership shall take any action affecting the Common
Units, other than action described in this Section 7, that in the opinion of
the Board of Directors would materially adversely affect the conversion
rights of the holders of the Series B Preferred Shares, the Conversion Price
for the Series B Preferred Shares may be adjusted, to the extent permitted by
law, in such manner, if any, and at such time, as the Board of Directors, in
its sole discretion, may determine to be equitable in the circumstances.
SECTION 8. PERMISSIBLE DISTRIBUTIONS. In determining whether a
distribution (other than upon liquidation, dissolution or winding up),
whether by distribution, or upon redemption or other acquisition of Units or
otherwise, is permitted under Delaware law, amounts that would be needed, if
the Partnership were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of holders of Units of any
class or series of capital stock whose preferential rights upon dissolution
are superior or prior to those receiving the distribution shall not be added
to the Partnership's total liabilities.
SECTION 9. RANKING. Any class or series of partnership interests of
the Partnership shall be deemed to rank:
(a) prior to the Series B Preferred Units, as to the payment of
distributions and as to distribution of assets upon liquidation, dissolution
or winding up, if the holders of such class or series shall be entitled to
the receipt of distributions or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series B Preferred Units ("Senior Units");
(b) on a parity with the Series B Preferred Units, as to the
payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up,
Exhibit D - Series B Preferred Page 12
whether or not the distribution rates, distribution payment dates or
redemption or liquidation prices per Unit thereof be different from those of
the Series B Preferred Units, if the holders of such class of stock or series
and the Series B Preferred Units shall be entitled to the receipt of
distributions and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
distributions per Unit or liquidation preferences, without preference or
priority one over the other ("Parity Units"); and
(c) junior to the Series B Preferred Units, as to the payment of
distributions or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock or series shall be Common Units or
Class B Limited Partnership Interests or if the holders of Series B Preferred
Units shall be entitled to receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of units of such class series of
partnership interest, and such class or series shall not in either case rank
prior to the Series B Preferred Units ("Junior Units").
SECTION 10. VOTING.
(a) Other than as required by law or paragraph (b) and (c) of this
Section 10, the Series B Preferred Units shall not have any voting rights or
powers, and the consent of the holders thereof shall not be required for the
taking of any partnership action.
(b) So long as any Series B Preferred Units are outstanding, in
addition to any other vote or consent of Unitholders required by the
Partnership Agreement, the affirmative vote of at least 66-2/3% of the votes
entitled to be cast by the holders of Series B Preferred Units, at the time
outstanding, voting as a single class, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating any amendment, alteration of
or repeal of the Partnership Agreement materially and adversely affecting,
directly or indirectly, the terms and conditions of, or the rights or
preferences of the Preferred Units; PROVIDED, HOWEVER, that (A) the amendment
or supplement of the provisions of the Partnership Agreement so as to
authorize or create, or to increase the authorized amount of, any Junior
Units or any Parity Units shall not be deemed to adversely affect Series B
Preferred Units, and (B) any amendment, alteration of or repeal of the
Partnership Agreement in connection with a merger or consolidation of GTA or
the Partnership or the sale of all or substantially all of the assets of the
Partnership shall not be deemed to adversely affect the Series B Preferred
Units so long as (1) the Partnership is the surviving entity and the Series B
Preferred Units remains outstanding with the terms thereof materially
unchanged or (2) the Series B Preferred Units are exchanged for a security of
the resulting, surviving or transferee entity having substantially the same
terms and rights as the Series B Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation, dissolution or
winding-up.
(c) So long as any Series B Preferred Units are outstanding, in
addition to any other vote or consent of Unitholders required by the
Partnership Agreement, the affirmative vote of 100% of the votes entitled to
be cast by the holders of Series B Preferred Units, at the time outstanding,
voting as a single class, given in person or by proxy, either in writing
without a
Exhibit D - Series B Preferred Page 13
meeting or by vote at any meeting called for the purpose, shall be necessary
for effecting or validating the authorization or creation of, or the issuance
of, any Senior Units.
(d) The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Series B Preferred Units shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(e) Except as otherwise required by law or provided herein or
elsewhere in the Partnership Agreement, the holders of Series B Preferred
Units shall not be entitled to receive any notice of any proceedings of the
Company or the Partnership.
For purposes of the foregoing provisions of this Section 10, each
Series B Preferred Unit shall have one (1) vote per Unit.
SECTION 11. RECORD HOLDERS. The Partnership may deem and treat the
record holder of any Series B Preferred Units as the true and lawful owner
thereof for all purposes, and the Partnership shall not be affected by any
notice to the contrary.
SECTION 12. EFFECTIVE DATE. These Articles of Designation shall be
effective as of May 11, 1999.
Exhibit D - Series B Preferred Page 14