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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
___________________
CAMDEN PROPERTY TRUST
(Exact name of registrant as specified in its charter)
Texas 76-6088377
(State of incorporation or organization) (I.R.S. employer identification
number)
3200 Southwest Freeway, Suite 1500
Houston, Texas
77027
(Address of principal executive offices) (zip code)
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<S> <C>
If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section 12(b) class of securities pursuant to Section 12(g)
of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction A.(c), pursuant to General Instruction A.(d),
please check the following box. [ ] please check the following box. [ ]
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Securities Act registration statement file number to which this form
relates: 333-45817
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered registered
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Series A Cumulative Convertible New York Stock Exchange
Preferred Shares of Beneficial Interest
Par Value $0.01
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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Item 1 Description of Registrant's Securities to be Registered
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The description of the Registrant's Series A Cumulative Convertible
Preferred Shares of Beneficial Interest, par value $0.01 per share,
is contained under the caption "Description of Camden Securities--
Camden Preferred Shares" in the Joint Proxy Statement/Prospectus that
forms a part of the Registration Statement on Form S-4 (Registration
No. 333-45817) filed by the Registrant on February 6, 1998, which is
incorporated herein by reference.
Item 2 Exhibits
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Amended and Restated Declaration of Trust of Camden Property Trust
(filed as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993 (file no. 1-12110) and
incorporated by reference herein).
Second Amended and Restated Bylaws of Camden Property Trust (filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1997 (file no. 1-12110) and incorporated by
reference herein).
* Form of Statement of Designation of Series A Cumulative Convertible
Preferred Shares of Camden Property Trust.
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* Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
Date: March 3, 1998 CAMDEN PROPERTY TRUST
By: /s/ G. Steven Dawson
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G. Steven Dawson
Senior Vice President - Finance, Chief
Chief Financial Officer, Treasurer and
Assistant Secretary
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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1 Amended and Restated Declaration of Trust of Camden Property
Trust (filed as Exhibit 3.1 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1993
(file no. 1-12110) and incorporated by reference herein).
2 Second Amended and Restated Bylaws of Camden Property Trust
(filed as Exhibit 3.1 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1997
(file no. 1-12110) and incorporated by reference herein).
* 3 Form of Statement of Designation of Series A Cumulative
Convertible Preferred Shares of Camden Property Trust.
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* Filed herewith.
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EXHIBIT 3
CAMDEN PROPERTY TRUST
FORM OF
STATEMENT OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A CUMULATIVE CONVERTIBLE PREFERRED SHARES OF
BENEFICIAL INTEREST
Section I Number of Shares and Designation. This series of Preferred
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Shares of Beneficial Interest shall be designated as Series A Cumulative
Convertible Preferred Shares of Beneficial Interest (the "Series A Preferred
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Shares") and up to Five Million (5,000,000) shall be the number of such
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Preferred Shares of Beneficial Interest constituting such series.
Section II Definitions. For purposes of the Series A Preferred Shares, the
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following terms shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
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"affiliate" of a person means a person that directly, or indirectly through
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one or more intermediaries, controls or is controlled by, or is under common
control with, the person specified.
"Trust Managers" shall mean the Trust Managers of the Trust or any committee
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authorized by such Trust Managers to perform any of its responsibilities with
respect to the Series A Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
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which state or federally chartered banking institutions in New York, New York
are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (b) of Section 5
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hereof.
"Common Shares" shall mean Common Shares of Beneficial Interest, $.01 par
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value per share, of the Trust or such shares of the Trust's capital shares
into which such Common Shares of Beneficial Interest shall be reclassified.
"Constituent Person" shall have the meaning set forth in paragraph (e) of
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Section 7 hereof.
"Conversion Price" shall mean the conversion price per each Common Share for
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which each Series A Preferred Share is convertible, as such Conversion Price
may be adjusted pursuant to paragraph (d) of Section 7. The initial
conversion price shall be $32.4638 (equivalent to a conversion rate of 0.7701
Common Shares for each Series A Preferred Share).
"Current Market Price" of publicly traded Common Shares or any other class or
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series of capital shares or other security of the Trust or of any similar
security of any other issuer for any day shall mean the last reported sales
price, regular way on such day, or, if no sale takes place on such day, the
average of the reported closing bid and asked prices regular way on such day,
in either case as reported on the New York Stock Exchange ("NYSE") or, if such
security is not listed or admitted for trading on the NYSE, on the principal
national securities exchange on which such security is listed or admitted for
trading or, if not listed or admitted for trading on any national securities
exchange, on the National Market of the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such security is
not quoted on such National Market, the average of the closing bid and asked
prices on such day in the over-the-counter market as reported by NASDAQ or, if
bid and asked prices for such security on such day shall not have been
reported through NASDAQ, the average of the bid and asked prices on such day
as furnished by any NYSE member firm regularly making a market in such
security selected for such purpose by the Chief Executive Officer or the Trust
Managers or if any class or series of securities are not publicly
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traded, the fair value of the shares of such class as determined reasonably
and in good faith by the Trust Managers.
"Distribution" shall have the meaning set forth in paragraph (d)(iii) of
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Section 7 hereof.
"Dividend Payment Date" shall mean, with respect to each Dividend Period, the
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fifteenth day of February, May, August and November, in each year, commencing
on _________, 1998; provided, however, that if any Dividend Payment Date falls
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on any day other than a Business Day, the dividend payment due on such
Dividend Payment Date shall be paid on the Business Day immediately following
such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on January
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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 Dividend Period (other than
the initial Dividend Period, which shall commence on the Issue Date and end on
and include _________, 1998).
"Fair Market Value" shall mean the average of the daily Current Market Prices
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of a Common Share during five consecutive Trading Days selected by the Trust
commencing not more than 20 Trading Days before, and ending not later than,
the earlier of the day in question and the day before the "ex" date with
respect to the issuance or distribution requiring such computation. The term
"`ex' date," when used with respect to any issuance or distribution, means the
first day on which the Common Share trades regular way, without the right to
receive such issuance or distribution, on the exchange or in the market, as
the case may be, used to determine that day's Current Market Price.
"Funds Available for Distribution" shall mean funds from operations (net
--------------------------------
income, computed in accordance with generally accepted accounting principles
excluding gains or losses from debt restructuring and sales of property, plus
depreciation and amortization) minus non-revenue generating capital
expenditures and debt principal amortization, as determined by the Trust
Managers on a basis consistent with the policies and practices adopted by the
Trust for reporting publicly its results of operations and financial
condition.
"Issue Date" shall mean ____________, 1998.
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"Junior Shares" shall mean the Common Shares and any other class or series of
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capital shares of the Trust over which the Series A Preferred Shares have
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the Trust.
"Non-Electing Share" shall have the meaning set forth in paragraph (e) of
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Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b) of Section 8
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hereof.
"Permitted Common Shares Cash Distributions" means cash dividends and cash
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distributions paid on Common Shares after December 31, 1997 not in excess of
the sum of the Trust's cumulative undistributed net earnings at December 31,
1997, plus the cumulative amount of Funds Available for Distribution after
December 31, 1997, minus the cumulative amount of dividends accumulated,
accrued or paid on the Series A Preferred Shares or any other class of
Preferred Shares after January 1, 1998.
"Person" shall mean any individual, firm, partnership, corporation or other
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entity and shall include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in paragraph (a)(i) of
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Section 5 hereof.
"Series A Preferred Shares" shall have the meaning set forth in Section 1
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hereof.
"set apart for payment" shall be deemed to include, without any action other
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than the following, the recording by the Trust in its accounting ledgers of
any accounting or bookkeeping entry which indicates, pursuant to a declaration
of dividends or other distribution by the Trust Managers, the allocation of
funds to be so paid on any series or class of capital shares of the Trust;
provided, however, that if any funds for any class or series of Junior Shares
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or any
<PAGE>
class or series of Parity Shares are placed in a separate account of the Trust
or delivered to a disbursing, paying or other similar agent, then "set apart
for payment" with respect to the Series A Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Day", as to any securities, shall mean any day on which such
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securities are traded on the NYSE or, if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted or, if such
securities are not listed or admitted for trading on any national securities
exchange, on the National Market of NASDAQ or, if such securities are not
quoted on such National Market, in the securities market in which such
securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of Section 7
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hereof.
"Transfer Agent" means American Stock Transfer and Trust or such other U.S.
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bank with aggregate capital, surplus and undivided profits, as shown on its
last published report, of at least $50,000,000 as may be designated by the
Trust Managers or their designee as the transfer agent for the Series A
Preferred Shares.
"Voting Preferred Shares" shall have the meaning set forth in Section 9
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hereof.
Section III Dividends.
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3.1 The holders of Series A Preferred Shares shall be entitled to
receive, when and as declared by the Trust Managers out of funds legally
available for that purpose, cumulative dividends payable in cash in an amount
per Series A Preferred Share equal to the greater of (i) $.5625 per quarter
(equivalent to $2.25 per annum) or (ii) the cash dividends paid or payable on
the number of Common Shares, or portion thereof, into which a Series A Preferred
Share is convertible, in each case with appropriate proration for partial
quarters. The amount referred in clause (ii) of this paragraph (a) with respect
to each Dividend Period shall be determined as of the applicable Dividend
Payment Date by multiplying the number of Common Shares, or portion thereof
calculated to the fourth decimal point, into which a Series A Preferred Share
would be convertible at the opening of business on such Dividend Payment Date
(based on the Conversion Price then in effect) by the quarterly cash dividend
payable or paid for such Dividend Period in respect of a Common Share
outstanding as of the record date for the payment of dividends on the Common
Shares with respect to such Dividend Period or, if different, with respect to
the most recent quarterly period for which dividends with respect to the Common
Shares have been declared. Such dividends shall be cumulative from the Issue
Date, whether or not in any Dividend Period or Periods such dividends shall be
declared or there shall be funds of the Trust legally available for the payment
of such dividends, and shall be payable quarterly in arrears on the Dividend
Payment Dates, commencing on the first Dividend Payment Date after the Issue
Date. Each such dividend shall be payable in arrears to the holders of record of
the Series A Preferred Shares, as they appear on the records of the Trust at the
close of business on a record date which shall be not more than 60 days prior to
the applicable Dividend Payment Date and shall be fixed by the Trust Managers to
coincide with the record date for the regular quarterly dividends, if any,
payable with respect to the Common Shares. Accumulated, accrued and unpaid
dividends for any past Dividend Periods may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to holders of record on
such date, which date shall not precede by more than 45 days the payment date
thereof, as may be fixed by the Trust Managers. The amount of accumulated,
accrued and unpaid dividends on any Series A Preferred Share, or fraction
thereof, at any date shall be the amount of any dividends thereon calculated at
the applicable rate to and including such date, whether or not earned or
declared, which have not been paid in cash.
3.2 The amount of dividends payable per Series A Preferred Share
for each full Dividend Period shall be computed by dividing the annual dividend
by four. The amount of dividends payable per Series A Preferred Share for the
initial Dividend Period, or any other period shorter or longer than a full
Dividend Period, shall be computed ratably on the basis of twelve 30-day months
and a 360-day year. Holders of Series A Preferred Shares shall not be entitled
to any dividends, whether payable in cash, property or shares, in excess of
cumulative dividends, as herein provided, on the Series A Preferred Shares. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series A Preferred Shares that may be in
arrears.
3.3 So long as any of the Series A Preferred Shares are
outstanding, no dividends, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment by the Trust or
other
<PAGE>
distribution of cash or other property declared or made directly or indirectly
by the Trust or any affiliate or any person acting on behalf of the Trust or any
of its affiliates with respect to any class or series of Parity Shares for any
period unless dividends equal to the full amount of accumulated, accrued and
unpaid dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof have been or
contemporaneously are set apart for such payment on the Series A Preferred
Shares for all Dividend Periods terminating on or prior to the Dividend Payment
Date with respect to such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon the Series A Preferred Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated, accrued and unpaid on the Series A Preferred Shares and
accumulated, accrued and unpaid on such Parity Shares.
3.4 So long as any of the Series A Preferred Shares are
outstanding, no dividends (other than dividends or distributions paid in shares
of or options, warrants or rights to subscribe for or purchase Junior Shares)
shall be declared or paid or set apart for payment by the Trust or other
distribution of cash or other property declared or made directly or indirectly
by the Trust or any affiliate or any person acting on behalf of the Trust or any
of its affiliates with respect to any Junior Shares, nor shall any Junior Shares
be redeemed, purchased or otherwise acquired (other than a redemption, purchase
or other acquisition of Common Shares made for purposes of an employee incentive
or benefit plan of the Trust or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
such shares) directly or indirectly by the Trust or any affiliate or any person
acting on behalf of the Trust or any of its affiliates (except by conversion
into or exchange for Junior Shares), nor shall any other cash or other property
otherwise be paid or distributed to or for the benefit of any holder of Junior
Shares in respect thereof, directly or indirectly, by the Trust or any affiliate
or any person acting on behalf on the Trust or any of its affiliates unless in
each case (i) the full cumulative dividends (including all accumulated, accrued
and unpaid dividends) on all outstanding Series A Preferred Shares and any other
Parity Shares of the Trust shall have been paid or such dividends have been
declared and set apart for payment for all past Dividend Periods with respect to
the Series A Preferred Shares and all past dividend periods with respect to such
Parity Shares and (ii) sufficient funds shall have been paid or set apart for
the payment of the full dividend for the current Dividend Period with respect to
the Series A Preferred Shares and the current dividend period with respect to
such Parity Shares.
Section IV Liquidation Preference.
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4.1 In the event of any liquidation, dissolution or winding up of
the Trust, whether voluntary or involuntary, before any payment or distribution
of the assets of the Trust (whether capital or surplus) shall be made to or set
apart for the holders of Junior Shares, the holders of Series A Preferred Shares
shall be entitled to receive $25.00 per Series A Preferred Share plus an amount
equal to all dividends (whether or not earned or declared) accumulated, accrued
and unpaid thereon to the date of final distribution to such holders; but such
holders shall not be entitled to any further payment. Until the holders of the
Series A Preferred Shares have been paid the liquidation preference in full, no
payment will be made to any holder of Junior Shares upon the liquidation,
dissolution or winding up of the Trust. If, upon any liquidation, dissolution or
winding up of the Trust, the assets of the Trust, or proceeds thereof,
distributable among the holders of Series A Preferred Shares shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Shares, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series A Preferred Shares and any such other Parity Shares ratably in the same
proportion as the respective amounts that would be payable on such Series A
Preferred Shares and any such other Parity Shares if all amounts payable thereon
were paid in full. For the purposes of this Section 4, (i) a consolidation or
merger of the Trust with one or more corporations, (ii) a sale or transfer of
all or substantially all of the Trust's assets, or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of the Trust.
4.2 Subject to the rights of the holders of any Parity Shares,
upon any liquidation, dissolution or winding up of the Trust, after payment
shall have been made in full to the holders of Series A Preferred Shares and any
Parity Shares, as provided in this Section 4, any other series or class or
classes of Junior Shares 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 A Preferred Shares and any Parity Shares shall not be
entitled to share therein.
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Section V Redemption at the Option of the Trust.
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5.1 Series A Preferred Shares shall be redeemable by the Trust
prior to April 30, 2001. On and after April 30, 2001, the Trust, at its option
may redeem Series A Preferred Shares, in whole or from time to time in part; as
set forth herein, subject to the provisions described below:
(a) Series A Preferred Shares may be redeemed, in whole, or
in part, at the option of the Trust, at any time on or after April 30, 2001 by
issuing and delivering to each holder for each Series A Preferred Share to be
redeemed such number of authorized but previously unissued Common Shares as
equals the liquidation preference (excluding any accumulated, accrued and unpaid
dividends, if any, to the Call Date (as defined in paragraph (b) below), which
are to be paid in cash, whether or not earned or declared, as provided below)
per Series A Preferred Share divided by the Conversion Price as in effect as of
the opening of business on the Call Date; provided, however, that the Trust may
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redeem Series A Preferred Shares pursuant to this paragraph (a)(i) only if for
20 Trading Days, within any period of 30 consecutive Trading Days, including the
last Trading Day of such 30-Trading Day period, the Current Market Price of the
Common Shares on each of such 20 Trading Days equals or exceeds the Conversion
Price in effect on such Trading Days. In order to exercise its redemption option
pursuant to this paragraph (a)(i), the Trust must issue a press release
announcing the redemption (the "Press Release") prior to the opening of business
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on the second Trading Day after the condition in the preceding sentence has,
from time to time, been satisfied. The Trust may not issue a Press Release
prior to March 31, 2001. The Press Release shall announce the redemption and
set forth the number of Series A Preferred Shares that the Trust intends to
redeem; or
(b) Each Series A Preferred Share may be redeemed, in whole
or in part, at the option of the Trust at any time on or after April 30, 2001
out of funds legally available therefor at a redemption price payable in cash
equal to $32.4638 per Series A Preferred Share (plus an amount equal to all
accumulated, accrued and unpaid dividends, if any, to the Call Date, whether or
not earned or declared, as provided below).
5.2 Series A Preferred Shares shall be redeemed by the Trust on
the date specified in the notice to holders required under paragraph (d) of this
Section 5 (the "Call Date"). The Call Date shall be selected by the Trust, shall
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be specified in the notice of redemption and shall be not less than 30 days nor
more than 60 days after (i) the date on which the Trust issues the Press
Release, if such redemption is pursuant to paragraph (a)(i) of this Section 5,
and (ii) the date notice of redemption is sent by the Trust, if such redemption
is pursuant to paragraph (a)(ii) of this Section 5. Upon any redemption of
Series A Preferred Shares pursuant to this paragraph (a)(i) or (a)(ii) of this
Section 5, the Trust shall pay in cash to the holder of such shares an amount
equal to all accumulated, accrued and unpaid dividends, if any, to the Call
Date, whether or not earned or declared. Immediately prior to authorizing any
redemption of the Series A Preferred Shares, and as a condition precedent for
such redemption, the Company, by resolution of its Trust Managers, shall declare
a mandatory dividend on the Series A Preferred Shares payable in cash on the
Call Date in an amount equal to all accumulated, accrued and unpaid dividends as
of the Call Date on the Series A Preferred Shares to be redeemed, which amount
shall be added to the redemption price. If the Call Date falls after a dividend
payment record date and prior to the corresponding Dividend Payment Date, then
each holder of Series A Preferred Shares at the close of business on such
dividend payment record date shall be entitled to the dividend payable on such
shares on the corresponding Dividend Payment Date notwithstanding the redemption
of such shares prior to such Dividend Payment Date. Except as provided above,
the Trust shall make no payment or allowance for accumulated or accrued
dividends on Series A Preferred Shares called for redemption or on the Common
Shares issued upon such redemption.
5.3 If full cumulative dividends on all outstanding Series A
Preferred Shares and any other class or series of Parity Shares of the Trust
have not been paid or declared and set apart for payment, no Series A Preferred
Shares may be redeemed unless all outstanding Series A Preferred Shares are
simultaneously redeemed and neither the Trust nor any affiliate of the Trust may
purchase or acquire Series A Preferred Shares, otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of Series A
Preferred Shares.
5.4 If the Trust shall redeem Series A Preferred Shares pursuant
to paragraph (a) of this Section 5, notice of such redemption shall be given to
each holder of record of the shares to be redeemed and, if such redemption is
pursuant to paragraph (a)(i) of this Section 5, such notice shall be given not
more than four Business Days after the date on which the Trust issues the Press
Release. Such notice shall be provided by first class mail, postage prepaid, at
such holder's address as the same appears on the shareholder records of the
Trust, or by publication in The Wall Street
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<PAGE>
Journal or The New York Times, or if neither such newspaper is then being
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published, any other daily newspaper of national circulation not less than 35
nor more than 60 days prior to the Call Date. If the Trust elects to provide
such notice by publication, it shall also promptly mail notice of such
redemption to the holders of the Series A Preferred Shares to be redeemed.
Neither the failure to mail any notice required by this paragraph (d), nor any
defect therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (1) the Call Date; (2) the number
of Series A Preferred Shares to be redeemed and, if fewer than all such shares
held by such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) whether redemption will be for Common Shares pursuant to
paragraph (a)(i) of this Section 5 or for cash pursuant to paragraph (a)(ii) of
this Section 5, and, if redemption will be for Common Shares, the number of
Common Shares (or fraction of a Common Share) to be issued with respect to each
Series A Preferred Share to be redeemed; (4) the place or places at which
certificates for such shares are to be surrendered for certificates representing
Common Shares; (5) the then-current Conversion Price; and (6) that dividends on
the Series A Preferred Shares to be redeemed shall cease to accrue on such Call
Date except as otherwise provided herein. Notice having been published or mailed
as aforesaid, from and after the Call Date (unless the Trust shall fail to issue
and make available the number of Common Shares and/or amount of cash necessary
to effect such redemption, including all accumulated, accrued and unpaid
dividends to the Call Date, whether or not earned or declared), (i) except as
otherwise provided herein, dividends on the Series A Preferred Shares so called
for redemption shall cease to accumulate or accrue on the Series A Preferred
Shares called for redemption (except that, in the case of a Call Date after a
dividend record date and prior to the related Dividend Payment Date, holders of
Series A Preferred Shares on the dividend record date will be entitled on such
Dividend Payment Date to receive the dividend payable on such shares), (ii) said
shares shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Series A Preferred Shares of the Trust shall cease
(except the rights to receive the Common Shares and/or cash payable upon such
redemption, without interest thereon, upon surrender and endorsement of their
certificates if so required and to receive any dividends payable thereon). The
Trust's obligation to provide Common Shares and/or cash in accordance with the
preceding sentence shall be deemed fulfilled if, on or before the Call Date, the
Trust shall deposit with a bank or trust company (which may be an affiliate of
the Trust) that has an office in the Borough of Manhattan, the City of New York,
or in Houston, Texas and that has, or is an affiliate of a bank or trust company
that has, a capital and surplus of at least $50,000,000, such number of Common
Shares and such amount of cash as is necessary for such redemption, in trust,
with irrevocable instructions that such Common Shares and/or cash be applied to
the redemption of the Series A Preferred Shares so called for redemption. In the
case of any redemption pursuant to paragraph (a)(i) of this Section 5, at the
close of business on the Call Date, each holder of Series A Preferred Shares to
be redeemed (unless the Trust defaults in the delivery of the Common Shares or
cash payable on such Call Date) shall be deemed to be the record holder of the
number of Common Shares into which such Series A Preferred Shares are to be
converted at redemption, regardless of whether such holder has surrendered the
certificates representing the Series A Preferred Shares to be so redeemed. No
interest shall accrue for the benefit of the holders of Series A Preferred
Shares to be redeemed on any cash so set aside by the Trust. Subject to
applicable escheat laws, any such cash unclaimed at the end of two years from
the Call Date shall revert to the general funds of the Trust, after which
reversion the holders of Series A Preferred Shares so called for redemption
shall look only to the general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with said notice
of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Trust shall so require and if the notice shall so
state), such certificates shall be exchanged for certificates representing
Common Shares and/or any cash (without interest thereon) for which such shares
have been redeemed in accordance with such notice. If fewer than all the
outstanding Series A Preferred Shares are to be redeemed, shares to be redeemed
shall be selected by the Trust from outstanding Series A Preferred Shares not
previously called for redemption by lot or, with respect to the number of Series
A Preferred Shares held of record by each holder of such shares, pro rata (as
nearly as may be) or by any other method as may be determined by the Trust
Managers in its discretion to be equitable. If fewer than all the Series A
Preferred Shares represented by any certificate are redeemed, then a new
certificate representing the unredeemed shares shall be issued without cost to
the holders thereof.
5.5 In the case of any redemption pursuant to paragraph (a)(i) of
this Section 5, no fractional Common Shares or scrip representing fractions of
Common Shares shall be issued upon redemption of the Series A Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon
<PAGE>
redemption of Series A Preferred Shares, the Trust shall pay to the holder of
such share an amount in cash (computed to the nearest cent) based upon the
Current Market Price of the Common Shares on the Trading Day immediately
preceding the Call Date. If more than one share shall be surrendered for
redemption at one time by the same holder, the number of full Common Shares
issuable upon redemption thereof shall be computed on the basis of the aggregate
number of Series A Preferred Shares so surrendered.
5.6 In the case of any redemption pursuant to paragraph (a)(i) of
this Section 5, the Trust covenants that any Common Shares issued upon
redemption of Series A Preferred Shares shall be validly issued, fully paid and
non-assessable. The Trust shall use its best efforts to list, subject to
official notice of issuance, the Common Shares required to be delivered upon any
such redemption of Series A Preferred Shares, prior to such redemption, upon
each national securities exchange, if any, upon which the outstanding Common
Shares are listed at the time of such delivery.
The Trust shall take any action necessary to ensure that any Common Shares
issued upon the redemption of Series A Preferred Shares are freely transferable
and not subject to any resale restrictions under the Act, or any applicable
state securities or blue sky laws (other than any Common Shares issued upon
redemption of any Series A Preferred Shares which are held by an "affiliate" (as
defined in Rule 144 under the Act) of the Trust).
Section VI Shares To Be Retired. All Series A Preferred Shares which shall
--------------------
have been issued and reacquired in any manner by the Trust shall be restored to
the status of authorized, but unissued Preferred Shares, without designation as
to series. The Trust may also retire any unissued Series A Preferred Shares,
and such shares shall then be restored to the status of authorized but unissued
Preferred Shares, without designation as to series.
Section VII Conversion.
----------
Holders of Series A Preferred Shares shall have the right to convert all or a
portion of such shares into Common Shares, as follows:
7.1 Subject to and upon compliance with the provisions of this
Section 7, a holder of Series A Preferred Shares shall have the right, at such
holder's option, at any time to convert such shares, in whole or in part, into
the number of fully paid and nonassessable shares of authorized but previously
unissued Common Shares obtained by dividing the aggregate liquidation preference
(excluding any accumulated, accrued and unpaid dividends) of such shares by the
Conversion Price (as in effect at the time and on the date provided for in the
last clause of paragraph (b) of this Section 7) by surrendering such shares 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 A
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Preferred Shares called for redemption pursuant to Section 5 shall terminate at
the close of business on the Call Date fixed for such redemption, unless the
Trust shall default in making payment of Common Shares and/or cash payable upon
such redemption under Section 5 hereof.
7.2 In order to exercise the conversion right, the holder of each
Series A Preferred Share to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Trust or in blank, at
the office of the Transfer Agent, accompanied by written notice to the Trust
that the holder thereof elects to convert such Series A Preferred Shares. Unless
the shares issuable on conversion are to be issued in the same name as the name
in which such Series A Preferred Shares are registered, each share surrendered
for conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Trust, 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 Trust demonstrating that such taxes
have been paid).
Holders of Series A Preferred Shares at the close of business on a dividend
payment record date shall be entitled to receive the dividend payable on such
shares on the corresponding Dividend Payment Date notwithstanding the conversion
thereof following such dividend payment record date and prior to such Dividend
Payment Date. However, Series A Preferred Shares surrendered for conversion
during the period between the close of business on any dividend payment record
date and the opening of business on the corresponding Dividend Payment Date
(except shares converted after the issuance of notice of redemption with respect
to a Call Date during such period, such Series A Preferred Shares being entitled
to such dividend on the Dividend Payment Date) must be accompanied by payment of
an amount equal to the dividend payable on such shares on such Dividend Payment
Date. A holder of Series A Preferred Shares on a
<PAGE>
dividend payment record date who (or whose transferee) tenders any such shares
for conversion into Common Shares on such Dividend Payment Date will receive the
dividend payable by the Trust on such Series A Preferred Shares on such date,
and the converting holder need not include payment of the amount of such
dividend upon surrender of Series A Preferred Shares for conversion. Except as
provided above, the Trust shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the Common Shares issued upon such conversion.
As promptly as practicable after the surrender of certificates for Series A
Preferred Shares as aforesaid, the Trust shall issue and shall deliver at such
office to such holder, or send on such holder's written order, a certificate or
certificates for the number of full Common Shares issuable upon the conversion
of such Series A Preferred Shares in accordance with provisions of this Section
7, and any fractional interest in respect of a Common Share 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 the certificates for Series A Preferred
Shares shall have been surrendered and such notice received by the Trust as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for Common Shares shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the shares represented
thereby at such time on such date and such conversion shall be at the Conversion
Price in effect at such time on such date unless the share transfer books of the
Trust 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 transfer books are open, but
such conversion shall be at the Conversion Price in effect on the date on which
such shares shall have been surrendered and such notice received by the Trust.
7.3 No fractional Common Share or scrip representing fractions of
a Common Share shall be issued upon conversion of the Series A Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise be
deliverable upon the conversion of Series A Preferred Shares, the Trust shall
pay to the holder of such share an amount in cash based upon the Current Market
Price of the Common Shares on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for conversion at one
time by the same holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Series A Preferred Shares so surrendered.
7.4 The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a
dividend or make a distribution on its capital shares of Common Shares, (B)
subdivide its outstanding Common Shares into a greater number of shares, (C)
combine its outstanding Common Shares into a smaller number of shares or (D)
issue any capital shares by reclassification of its Common Shares, 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 A Preferred Share thereafter surrendered for conversion shall be
entitled to receive the number of Common Shares (or fraction of a Common
Share) 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 A
Preferred Share 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 paragraph (d)(i) of this Section 7 shall become effective immediately
after the opening of business on the day next following the record date
(except as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening of
business on the day next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them (for a
period expiring within 45 days after the record date described below in this
paragraph (d)(ii) of this Section 7) to subscribe for or purchase Common
Shares at a price per share less than the Fair Market Value per Common Share
on the record date for the determination of shareholders entitled to receive
such rights 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
<PAGE>
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 (X) the number of Common Shares outstanding at the close of
business on the date fixed for such determination and (Y) the number of shares
that the aggregate proceeds to the Trust from the exercise of such rights or
warrants for Common Shares would purchase at such Fair Market Value, and the
denominator of which shall be the sum of (XX) the number of Common Shares
outstanding on the close of business on the date fixed for such determination
and (YY) the number of additional Common Shares offered for subscription or
purchase pursuant to such rights or warrants. Such adjustment shall become
effective immediately after the opening of business on the day next following
such record date (except as provided in paragraph (h) below). In determining
whether any rights or warrants entitle the holders of Common Shares to
subscribe for or purchase Common Shares at less than such Fair Market Value,
there shall be taken into account any consideration received by the Trust upon
issuance and upon exercise of such rights or warrants, the value of such
consideration, if other than cash, to be determined in good faith by the Trust
Managers.
(iii) If the Trust shall distribute to all holders of its
Common Shares any capital shares of the Trust (other than Common Shares) or
evidence of its indebtedness or assets (including cash, but excluding cash
dividends and cash distributions to the extent the same constitute Permitted
Common Shares Cash Distributions and cash dividends which result in a payment
of an equal cash dividend to the holders of the Series A Preferred Shares
pursuant to subparagraph (ii) of Section 3(a) hereof) 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 paragraph (d)
(ii) of this Section 7 above to subscribe for or purchase Common Shares, which
rights and warrants are referred to in and treated under such paragraph
(d)(ii) above) (any of the foregoing being hereinafter in this paragraph
(d)(iii) called the "Distribution"), then in each such 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 Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Board of Trust Managers,
whose determination shall be conclusive and described in a Board resolution),
of the portion of the capital shares 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 Fair Market Value per Common Share on
the record date mentioned below. Such adjustment shall become effective
immediately at the opening of business on the Business Day next following
(except as provided in paragraph (h) below) the record date for the
determination of shareholders entitled to receive such Distribution. For the
purposes of this paragraph (d)(iii), the distribution of a right or warrant to
subscribe or purchase any of the Trust's securities, 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 right or
warrant, but also is distributed with Common Shares delivered to a Person
converting Series A Preferred Shares after such determination date, shall not
require an adjustment of the Conversion Price pursuant to this paragraph
(d)(iii); provided that if on the date, if any, on which a person converting
--------
Series A Preferred Shares such person would no longer be entitled to receive
such right or warrant with Common Shares (other than as a result of the
termination of all such right or warrant), a distribution of such rights or
warrants shall be deemed to have occurred and the Conversion Price shall be
adjusted as provided in this paragraph (d)(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.
(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 paragraph (d)(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 paragraph (d)(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 Trust 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 Trust 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) of this Section 7 to the
contrary notwithstanding, the Trust shall be entitled,
<PAGE>
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 Shares dividends,
subdivision of shares, reclassification or combination of shares, distribution
of rights or warrants to purchase Shares or securities, or a distribution of
other assets (other than cash dividends) hereafter made by the Trust to its
shareholders shall not be taxable, or if that is not possible, to diminish any
income taxes that are otherwise payable because of such event.
7.5 If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, issuer or
self tender offer for all or a substantial portion of the Common Shares
outstanding, sale of all or substantially all of the Trust's assets or
recapitalization of the Common Shares, but excluding any transaction as to which
paragraph (d)(i) of this Section 7 applies) (each of the foregoing being
referred to herein as a "Transaction"), in each case as a result of which Common
-----------
Shares shall be converted into the right to receive Shares, securities or other
property (including cash or any combination thereof), each Series A Preferred
Share which is not converted into the right to receive Shares, securities or
other property in connection with such Transaction shall thereupon be
convertible into the kind and amount of shares, securities and other property
(including cash or any combination thereof) receivable upon such consummation by
a holder of that number of Common Shares into which one Series A Preferred Share
was convertible immediately prior to such Transaction, assuming such holder of
Common Shares (i) is not a Person with which the Trust consolidated or into
which the Trust merged or which merged into the Trust or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an affiliate of
------------------
a Constituent Person and (ii) failed to exercise such holder's rights of
election, if any, as to the kind or amount of Shares, securities and other
property (including cash) receivable upon such Transaction provided that if the
kind or amount of Shares, securities and other property (including cash)
receivable upon such Transaction is not the same for each Common Share of the
Trust 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 Share"), then for the purpose of
------------------
this paragraph (e) the kind and amount of Shares, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing Share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Trust shall not be a party to any Transaction
unless the terms of such Transaction are consistent with the provisions of this
paragraph (e), and it shall not consent or agree to the occurrence of any
Transaction until the Trust 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 A Preferred Shares that will contain provisions enabling the holders of
the Series A Preferred Shares that remain outstanding after such Transaction to
convert into the consideration received by holders of Common Shares at the
Conversion Price in effect immediately prior to such Transaction. The
provisions of this paragraph (e) shall similarly apply to successive
Transactions.
7.6 If:
(i) the Trust shall declare a dividend (or any other
distribution) on the Common Shares (other than cash dividends and cash
distributions to the extent the same constitute Permitted Common Shares Cash
Distributions); or
(ii) the Trust shall authorize the granting to the holders of
the Common Shares of rights or warrants to subscribe for or purchase any
shares of any class or series of capital shares or any other rights or
warrants; or
(iii) there shall be any reclassification of the Common
Shares or any consolidation or merger to which the Trust is a party and for
which approval of any shareholders of the Trust is required, or a statutory
share exchange, or an issuer or self tender offer by the Trust for all or a
substantial portion of its outstanding Common Shares (or an amendment thereto
changing the maximum number of shares sought or the amount or type of
consideration being offered therefor) or the sale or transfer of all or
substantially all of the assets of the Trust as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust,
then the Trust shall cause to be filed with the Transfer Agent and shall cause
to be mailed to each holder of Series A
<PAGE>
Preferred Shares at such holder's address as shown on the records of the Trust,
as promptly as possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating (A) the record date for the payment of
such dividend, distribution or rights or warrants, or, if a record date is not
established, the date as of which the holders of Common Shares of record to be
entitled to such dividend, distribution or rights or warrants are to be
determined or (B) the date on which such reclassification, consolidation,
merger, statutory share exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Shares of record shall be entitled to exchange
their Common Shares for securities or other property, if any, deliverable upon
such reclassification, consolidation, merger, statutory share exchange, sale,
transfer, liquidation, dissolution or winding up or (C) the date on which such
tender offer commenced, the date on which such tender offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). Failure to give or
receive such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 7.
7.7 Whenever the Conversion Price is adjusted as herein provided,
the Trust shall promptly file with the Transfer Agent an officer's certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment which certificate shall
be conclusive evidence of the correctness of such adjustment absent manifest
error. Promptly after delivery of such certificate, the Trust shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date such adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Price to each holder
of Series A Preferred Shares at such holder's last address as shown on the
Shares records of the Trust.
7.8 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 Trust may defer until the occurrence of such event (A)
issuing to the holder of any Series A Preferred Share converted after such
record date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Shares 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.
7.9 There shall be no adjustment of the Conversion Price in case
of the issuance of any capital shares of the Trust 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.
7.10 If the Trust shall take any action affecting the Common
Shares, other than action described in this Section 7, that in the opinion of
the Trust Managers would materially adversely affect the conversion rights of
the holders of Series A Preferred Shares, the Conversion Price for the Series A
Preferred Shares may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time as the Trust Managers, in its sole discretion,
may determine to be equitable under the circumstances.
7.11 The Trust shall at all times reserve and keep available,
free from preemptive rights, out of the aggregate of its authorized but unissued
Common Shares solely for the purpose of effecting conversion of the Series A
Preferred Shares, the full number of Common Shares deliverable upon the
conversion of all outstanding Series A Preferred Shares not theretofore
converted into Common Shares. For purposes of this paragraph (k), the number of
Common Shares that shall be deliverable upon the conversion of all outstanding
Series A Preferred Shares shall be computed as if at the time of computation all
such outstanding shares were held by a single holder.
The Trust covenants that any Common Shares issued upon conversion of
the Series A Preferred Shares shall be validly issued, fully paid and
non-assessable.
The Trust shall use its best efforts to list the Common Shares required to be
delivered upon conversion of the Series A Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
The Trust shall take any action necessary to ensure that any Common Shares
issued upon conversion of Series A
<PAGE>
Preferred Shares are freely transferable and not subject to any resale
restrictions under the Act, or any applicable state securities or blue sky laws
(other than any Common Share held by an "affiliate" (as defined in Rule 144
under the Act)).
7.12 The Trust will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of Common
Shares or other securities or property on conversion or redemption of Series A
Preferred Shares pursuant hereto; provided, however, that the Trust shall not
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be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Shares or other securities or
property in a name other than that of the holder of the Series A Preferred
Shares to be converted or redeemed, and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid to the
Trust the amount of any such tax or established, to the reasonable satisfaction
of the Trust, that such tax has been paid.
Section VIII Ranking. Any class or series of capital shares of the Trust
-------
shall be deemed to rank:
8.1 prior or senior to the Series A Preferred Shares, as to the
payment of dividends 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 dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Series A Preferred Shares;
8.2 on a parity with the Series A Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof be different from
those of the Series A Preferred Shares, if the holders of such class of Shares
or series and the Series A Preferred Shares shall be entitled to the receipt of
dividends and of amounts distributable upon liquidation, dissolution or winding
up in proportion to their respective amounts of accrued and unpaid dividends per
share or liquidation preferences, without preference or priority one over the
other ("Parity Shares"); and
---------------
8.3 junior to the Series A Preferred Shares, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such Shares or series shall be Common Shares or if the holders
of Series A Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of shares of such class or
series ("Junior Shares").
Section IX Voting.
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9.1 If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Shares or any series or class of
Parity Shares shall be in arrears (which shall, with respect to any such
quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, the number of managers then constituting the
Board of Trust Managers shall be increased by two (if not already increased by
reason of a similar arrearage with respect to any Parity Shares) and the holders
of Series A Preferred Shares, together with the holders of shares of every other
series of Parity Shares (any other such series, the "Voting Preferred Shares"),
-----------------------
voting as a single class regardless of series, shall be entitled to elect the
two additional Trust Managers to serve on the Board of Trust Managers at any
annual meeting of shareholders or special meeting held in place thereof, or at a
special meeting of the holders of the Series A Preferred Shares and the Voting
Preferred Shares called as hereinafter provided. Whenever all arrears in
dividends on the Series A Preferred Shares and the Voting Preferred Shares then
outstanding shall have been paid and dividends thereon for the current quarterly
dividend period shall have been paid or declared and set apart for payment, then
the right of the holders of the Series A Preferred Shares and the Voting
Preferred Shares to elect such additional two managers shall cease (but subject
always to the same provision for the vesting of such voting rights in the case
of any similar future arrearages in six quarterly dividends), and the terms of
office of all persons elected as trust managers by the holders of the Series A
Preferred Shares and the Voting Preferred Shares shall forthwith terminate and
the number of the Trust Managers shall be reduced accordingly. At any time
after such voting power shall have been so vested in the holders of Series A
Preferred Shares and the Voting Preferred Shares, the Secretary of the Trust
may, and upon the written request of any holder of Series A Preferred Shares
(addressed to the Secretary at the principal office of the Trust) shall, call a
special meeting of the holders of the Series A Preferred Shares and of the
Voting Preferred Shares for the election of the two trust managers to be elected
by them as herein provided, such call to be made by notice similar to that
provided in the Bylaws of the Trust for a special meeting of the shareholders or
as required by law. If any
<PAGE>
such special meeting required to be called as above provided shall not be called
by the Secretary within 20 days after receipt of any such request, then any
holder of Series A Preferred Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the shareholder records of
the Trust. The trust managers elected at any such special meeting shall hold
office until the next annual meeting of the shareholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided. If any vacancy shall occur among the Trust Managers elected by the
holders of the Series A Preferred Shares and the Voting Preferred Shares, a
successor shall be elected by the Board of Trust Managers, upon the nomination
of the then-remaining Trust Manager elected by the holders of the Series A
Preferred Shares and the Voting Preferred Shares or the successor of such
remaining Trust Manager, to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if such office shall not
have previously terminated as provided above.
9.2 So long as any Series A Preferred Shares are outstanding, in
addition to any other vote or consent of shareholders required by law or by the
Amended and Restated Declaration of Trust, as amended, 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 and the Voting Preferred Shares, at the time outstanding,
acting as a single class regardless of series, 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:
(a) Any amendment, alteration or repeal of any of the
provisions of this amendment to the Amended and Restated Declaration of Trust,
the Amended and Restated Declaration of Trust or the Bylaws of the Trust that
materially adversely affects the voting powers, rights or preferences of the
holders of the Series A Preferred Shares or the Voting Preferred Shares;
provided, however,that the amendment of the provisions of the Amended and
- -------- -------
Restated Declaration of Trust so as to authorize or create, or to increase the
authorized amount of, any Junior Shares or any shares of any class ranking on a
parity with the Series A Preferred Shares or the Voting Preferred Shares shall
not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Series A Preferred Shares, and provided further,
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that if any such amendment, alteration or repeal would materially
adversely affect any voting powers, rights or preferences of the Series A
Preferred Shares or another series of Voting Preferred Shares that are not
enjoyed by some or all of the other series which otherwise would be entitled to
vote in accordance herewith, the affirmative vote of at least 66 2/3% of the
votes entitled to be cast by the holders of all series similarly affected,
similarly given, shall be required in lieu of 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 and the Voting Preferred Shares which otherwise would be
entitled to vote in accordance herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible into
shares of any class ranking prior or senior to the Series A Preferred Shares in
the distribution of assets on any liquidation, dissolution or winding up of the
Trust or in the payment of dividends; provided, however that no such vote of the
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holders of Series A Preferred Shares shall be required if, at or prior to the
time when such amendment, alteration or repeal is to take effect, or when the
issuance of any such prior shares or convertible security is to be made, as the
case may be, provision is made for the redemption of all Series A Preferred
Shares at the time outstanding.
For purposes of the foregoing provisions of this Section 9, each Series A
Preferred Share shall have one vote per share, except that when any other series
of preferred Shares shall have the right to vote with the Series A Preferred
Shares as a single class on any matter, then the Series A Preferred Shares and
such other series shall have with respect to such matters one vote per $25.00
of stated liquidation preference. Except as otherwise required by applicable
law or as set forth herein, the Series A Preferred Shares shall not have any
relative, participating, optional or other special voting rights and powers
other than as set forth herein, and the consent of the holders thereof shall not
be required for the taking of any corporate action.
Section X Record Holders. The Trust and the Transfer Agent may deem and
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treat the record holder of any Series A Preferred Share as the true and lawful
owner thereof for all purposes, and neither the Trust nor the Transfer Agent
shall be affected by any notice to the contrary.
