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EXHIBIT 4.8
CONFORMED COPY
TRUST AGREEMENT (herein called this "Agreement")
dated as of August 26, 1994, among the holders of the
6.50% First Series Preference Shares of CORPORATE
PROPERTY INVESTORS, a Massachusetts business trust
("CPI"), whose executions appear at the foot hereof
(herein called the "Shareholders"), CORPORATE REALTY
CONSULTANTS, INC., a Delaware corporation ("CRC"), and
BANK OF MONTREAL TRUST COMPANY, a New York trust
company, as Trustee (herein called, the "Trustee").
WHEREAS the Shareholders hold outstanding shares of Common Stock,
$.10 par value per share (the "Shares"), of CRC and outstanding shares of
beneficial interest, par value $1,000 per share, of 6.50% First Series
Preference Shares of CPI ("First Series Preference Shares"), the terms of the
Certificate of Designation (the "Certificate of Designation") for which are
substantially set forth in Exhibit A hereto; and
WHEREAS the Shareholders desire to create hereunder a trust, to be
known as the "CRC Trust II", the corpus of which is to consist of the Shares now
held by the Shareholders and any shares of stock of CRC received by the Trustee
with respect thereto and is to be held for the proportionate benefit of, or
distributed proportionately to, the registered holders from time to time (herein
called the "Grantors") of First Series Preference Shares who shall,
respectively, be (i) a Shareholder, or a transferee of the First Series
Preference Shares now held by a Shareholder who deposits all his Shares
hereunder in accordance with Section 1.01 hereof, or (ii) a holder of First
Series Preference Shares the issuance of which hereafter was, pursuant to
Section 2.03 hereof, accompanied by the transfer to CRC of the consideration set
forth in Section 2.03 hereof, or a transferee of any such First Series
Preference Shares; and
WHEREAS the Trustee is willing to accept the trust property
hereinafter described and to hold and dispose of it upon the trusts herein set
forth;
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NOW, THEREFORE, the parties hereto are agreed as follows:
ARTICLE I
Transfers of Shares to Trustee, Establishment
of Initial Trust Corpus and Holding of
Beneficial Interest Therein
SECTION 1.01. Transfer. (a) The Shareholders will, promptly after
the date of execution hereof, cause to be delivered to the Trustee certificates,
either registered in the Trustee's nominee's name or duly endorsed for transfer
to the nominee of the Trustee and with proper transfer tax stamps affixed
thereto if any such stamps are required, representing the Shares.
(b) The Grantors may from time to time cause to be delivered to the
Trustee certificates, either registered in the Trustee's nominee's name or duly
endorsed for transfer to the nominee of the Trustee and with proper transfer tax
stamps affixed thereto if any such stamps are required, representing additional
shares of stock of any class of CRC. CRC shall reimburse the Grantors for any
transfer tax stamps or any other transfer taxes payable in connection with the
issuance of such certificates.
(c) Stichting Pensioenfonds voor de Gezondheid Geestelijke en
Maatschappelijke belangen, a Dutch foundation (the "Initial Beneficiary"), will,
on the date of execution hereof, cause to be delivered to the Trustee $100 in
cash (the "Initial Trust Corpus"). Notwithstanding any other provision of this
Agreement, (i) the Trustee shall hold the Initial Trust Corpus, uninvested,
until the occurrence of the transfers contemplated by Section 1.01(a) hereof or
the earlier termination of the CRC Trust II pursuant to the terms hereof, (ii)
upon the occurrence of the transfers contemplated by Section 1.01(a) hereof or
such earlier termination, the Initial Trust Corpus shall be returned to the
Initial Beneficiary, without interest, and (iii) thereupon the Initial
Beneficiary shall not, in such capacity, have any further interest, as
beneficiary or otherwise, in the CRC Trust II, but Stichting Pensioenfonds voor
de Gezondheid Geestelijke en Maatschappelijke belangen shall have an interest in
the CRC Trust II as a Grantor.
SECTION 1.02. Beneficial Interest in Shares and Distributions with
Respect Thereto. (a) The Trustee agrees that (i) (all shares of stock of CRC
transferred to the nominee of the Trustee as described in Section 1.01
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hereof,(ii) all shares of stock of any class of CRC received by the Trustee as a
stock dividend or other distribution on, or as a result of a split-up of, shares
of stock of CRC held by the Trustee or received in exchange for such shares as a
result of a merger, consolidation, recapitalization or reclassification of CRC
or otherwise, (iii) all shares of stock of CRC issued to the Trustee as
described in Section 2.03 hereof and (iv) all shares of stock of any class of
CRC received by the Trustee upon its purchase thereof pursuant to Section 3.03
hereof or upon its exercise, pursuant to Section 2.04 hereof, of warrants or
rights to subscribe to or purchase such shares, will be held by it as Trustee
hereunder for the benefit of the Grantors in proportion to the respective
numbers of First Series Preference Shares held by them, and, subject to Section
5.04, will not be sold or otherwise disposed of during the term of the CRC Trust
II. The Trustee further agrees that, subject to Section 5.04 hereof, all cash
dividends and other assets received by the Trustee with respect to any of the
foregoing (including all assets received pursuant to Section 3.05 hereof and all
property other than cash or securities, all debt obligations, all shares of
stock and all warrants or rights to purchase stock or other securities which the
Trustee shall receive) exclusive of shares of stock, and warrants and rights to
purchase shares of stock, of CRC, will be distributed currently by the Trustee
to the Grantors in proportion to the respective numbers of First Series
Preference Shares held by them.
SECTION 1.03. Holding Trust Assets. All Shares and other assets held
in the CRC Trust II may be held of record in the name of the Trustee's nominee.
ARTICLE II
Transfer of Beneficial Interest, Issuance
of Additional First Series Preference Shares,
Warrants and Rights Offering by CRC and
Conversion of First Series Preference Shares
SECTION 2.01. List. The Trustee shall keep a list in alphabetical
order of the names and addresses of the Grantors and the number of First Series
Preference Shares held by each Grantor, all as certified to the Trustee by CPI
or its agent for the transfer of First Series Preference Shares. Upon written
request from CPI, CRC or any Grantor, the Trustee shall furnish to CPI, CRC or
such Grantor or to
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their respective authorized representatives or successors in interest a copy of
the most recent list furnished to the Trustee.
SECTION 2.02. Transfer. The beneficial interest of the Grantors in
the Shares held in the CRC Trust II shall not be transferable separately but
only by and as part of a transfer of First Series Preference Shares, and every
sale or transfer by any Grantor of all or part of its First Series Preference
Shares shall include all or a proportionate part of such Grantor's undivided
beneficial interest in the Shares or in any other assets in the CRC Trust II
then held by the Trustee. The sale or transfer of such undivided beneficial
interest shall be evidenced by the transfer of a certificate representing First
Series Preference Shares.
SECTION 2.03. Issuance of Additional First Series Preference Shares.
It is anticipated that, if CPI shall issue any additional First Series
Preference Shares after the date hereof and prior to January 1, 1995, (a) CRC
will concurrently issue a number of Shares to the Trustee bearing the same
relationship to the number of Shares then held by the Trustee as the number of
First Series Preference Shares being issued bears to the number of First Series
Preference Shares outstanding immediately prior to such issuance of First Series
Preference Shares and (b) against such issuance, the purchaser of such First
Series Preference Shares from CPI shall pay to CRC an amount approximately equal
to the product of $3.589 and the number of First Series Preference Shares being
issued. The Trustee will be advised in writing of any action taken by CPI as
described in this Section 2.03 and may properly rely on such advice.
SECTION 2.04. Warrants and Rights for Stock of CRC. Upon the receipt
by the Trustee from CRC of warrants or rights to subscribe to or purchase shares
of stock of any class of CRC, the Trustee shall inform the Grantors thereof and
advise the Grantors that if they desire and provide the Trustee with their
respective portions (proportionately to the respective numbers of First Series
Preference Shares held by them) of the consideration required for the exercise
in full of all such warrants or rights, the Trustee will exercise the same. The
Trustee will exercise such warrants or rights upon its receipt of the total
consideration required for the exercise of all such warrants or rights, but in
the event the Trustee does not receive the total consideration for the exercise
of all such warrants or rights it shall permit all such warrants or rights to
lapse and shall refund the consideration which it did receive to the Grantors
from which it was received, without interest.
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CRC shall not issue any warrants or rights to subscribe to or purchase shares of
stock of any class of CRC to the Trustee and holders of Shares other than the
Trustee unless such warrants or rights provide that such other holders shall not
be entitled to exercise the warrants or rights issued to such other holders
unless the Trustee shall exercise the warrants or rights issued to the Trustee.
SECTION 2.05. Conversion of First Series Preference Shares. Upon
each conversion by a Grantor of First Series Preference Shares pursuant to
Section 4 of the Certificate of Designation, the Trustee shall deliver to the
trustee of the CRC Trust (as defined below) all or a proportionate part, as
applicable, of such holder's undivided beneficial interest in the Shares and in
any other assets in the CRC Trust II then held by the Trustee, duly endorsed to
the trustee of the CRC Trust (as defined below) or its nominee. The "CRC Trust"
means the Trust created by that certain Trust Agreement dated as of October 30,
1979, among the shareholders of CPI at that date, CRC and First Jersey National
Bank, as Trustee, under which the holders of common shares of CPI have
beneficial interests in the shares of stock of CRC deposited in such Trust.
ARTICLE III
Dividends and Distributions
SECTION 3.01. Definition of "Additional Assets". Any cash, any
property other than cash or securities, any debt obligations, any shares of
stock and any warrants or rights to subscribe to or purchase securities
(hereinafter collectively called "Additional Assets") which the Trustee shall
receive as a dividend or other distribution on shares of stock of CRC held by
the Trustee, or as a result of a split-up of such shares or in exchange for such
shares pursuant to a merger, consolidation, recapitalization or reclassification
of CRC or otherwise, or upon the dissolution, liquidation or bankruptcy of CRC,
shall be dealt with by the Trustee as provided in Sections 2.04, 3.02, 3.03,
3.04 and 3.05 hereof.
SECTION 3.02. Trustee to Distribute Additional Assets Other Than
Stock of CRC or Warrants or Rights for Stock of CRC. Additional Assets
(including (i) property other than cash or securities, (ii) debt obligations of
CRC and warrants or rights to purchase securities of CRC other than shares of
its stock and (iii) debt obligations of, shares of stock of, and warrants or
rights to purchase stock or other securities of, any corporation other than CRC)
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other than shares of stock of any class of CRC and warrants or rights to
purchase shares of stock of any class of CRC which the Trustee shall receive
shall be distributed by the Trustee to the Grantors who are such on the record
date fixed by CRC for purposes of the payment or delivery of such Additional
Assets to its stockholders, in proportion to the respective numbers of First
Series Preference Shares held by such Grantors. The Trustee may direct that any
such Additional Assets be paid or distributed by CRC or by its dividend paying
or distribution or exchange agent directly to the Grantors and, upon acceptance
of such direction by CRC or such agent, such direction shall relieve the Trustee
from all further responsibility with respect thereto.
SECTION 3.03. Trustee to Retain Stock of CRC and Warrants or Rights
for Stock of CRC. Additional Assets consisting of shares of stock of any class
of CRC or warrants or rights to purchase shares of stock of any class of CRC
which the Trustee shall receive shall be added to the corpus of the CRC Trust II
and held by the Trustee, subject to all the terms and provisions of this
Agreement, for the benefit of the Grantors.
SECTION 3.04. Handling of Rights and Warrants. Additional Assets
received by the Trustee consisting of warrants or rights to subscribe to or
purchase any securities of CRC other than Shares or to subscribe to or purchase
any securities of any corporation other than CRC shall be distributed by the
Trustee in the manner described in Section 3.02 hereof. The Trustee shall not
sell or distribute any warrants or rights to subscribe to or purchase additional
shares of stock of any class of CRC and shall exercise such rights or warrants
if but only if the Grantors shall provide the Trustee funds appropriate for such
exercise pursuant to Section 2.04 hereof. Any shares of stock of CRC acquired by
the Trustee upon such exercise shall be added to the corpus of the CRC Trust II
and held by the Trustee, subject to all the terms and provisions of this
Agreement, for the benefit of the Grantors.
SECTION 3.05. Responsibility of Trustee on Dissolution, Liquidation
and Bankruptcy of CRC. In the event that CRC should be dissolved or completely
liquidated or be adjudged a bankrupt or institute proceedings to be adjudged a
bankrupt or take advantage of any bankruptcy or insolvency laws or if a receiver
is appointed for CRC or its property, or have proceedings to be adjudged a
bankrupt commenced against it without its application or consent, the Trustee
shall not be charged with any responsibility with respect to the dissolution,
liquidation, bankruptcy, insolvency, receivership or other proceedings except
(i) to
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mail to the Grantors a copy of any notice the Trustee may receive of the
institution of any such proceedings; and (ii) to pay and distribute moneys and
other property received by the Trustee to the Grantors, as of the date of
receipt by the Trustee, in proportion to their respective beneficial interests
in the CRC Trust II, against the submission to the Trustee of their certificates
for First Series Preference Shares for appropriate notation thereon of such
payment and upon final distribution for notation thereon to the effect that the
CRC Trust II has been terminated. If in connection with the final distribution
made to the Trustee the certificates evidencing stock of CRC held in trust are
required to be surrendered, the Trustee is authorized to surrender the same
against the receipt of such distribution. If such certificates are not required
to be surrendered in connection with such final distribution, the Trustee, after
the receipt thereof, shall deliver the certificates to the Grantors in
accordance with their respective interests, or as may be otherwise directed in
such dissolution, liquidation, bankruptcy, insolvency, receivership and other
proceedings.
ARTICLE IV
Voting and Proxies
SECTION 4.01. Directors of CRC. The Trustee shall, to the extent of
and in accordance with instructions received by it from CPI, vote the Shares
held by it so that each director of CRC shall, at all times also be a trustee of
CPI.
SECTION 4.02. Other Matters--Delivery of Notices and Proxies to
Trustee. With respect to each meeting of stockholders of CRC, the Trustee will
cause CRC to furnish to the Trustee copies of the notice of meeting, proxy
statement (if any) and form of proxy for such meeting in sufficient number and
sufficiently in advance of such meeting so that the Trustee may mail the same to
each Grantor on the date fixed by CRC for determining stockholders entitled to
vote at such meeting and request instructions from each Grantor as to how the
Shares held in the CRC Trust II at such date for the benefit of such Grantor
should be voted. Subject to Section 4.01 hereof, the Trustee shall, or shall
cause its nominee to, file with CRC a proxy or proxies in accordance with the
instructions received from the Grantors in respect of the Shares covered by such
instructions. Subject to Section 4.01 hereof, the Trustee shall not cast any
vote in respect of the Shares
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held in the CRC Trust II as to which voting instructions were not given to the
Trustee by the Grantors.
SECTION 4.03. Financial Information. The Trustee shall mail to the
Grantors, as shown by a list of Grantors maintained by the Trustee as provided
in Section 2.01 hereof, copies of all reports, financial statements and other
communications which CRC mails to its stockholders of record.
SECTION 4.04. Inspection of Records. The Trustee shall, upon request
of one or more Grantors, as shown by a list of Grantors maintained by the
Trustee as provided in Section 2.01 hereof, exercise for their benefit such
rights to inspect and make copies of all corporate records of CRC as such
Grantors would have if they were holders of record of the Shares held in the CRC
Trust II for their benefit.
ARTICLE V
Concerning the Trustee
SECTION 5.01. Duties and Responsibilities. The Trustee shall be
obligated to perform and be liable for only such acts as are specifically
provided for herein. The Trustee shall have no responsibility with respect to
the voting of stock held in the CRC Trust II, except as provided in Article IV
hereof, or with respect to the operation or carrying on of the business of CRC.
The Trustee shall not be liable for any error of judgment made in good faith by
an authorized officer of the Trustee. No provision of this Agreement shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights and powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 5.02. Certain Rights of Trustee. The Trustee may rely, and
shall be protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, consent, order or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. The Trustee may consult with counsel of its own choosing and
any opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it in good faith and in
accordance with such opinion.
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SECTION 5.03. Recitals. The recitals contained herein and any
recital or provision contained in certificates representing First Series
Preference Shares shall be taken as the statements of CPI or CRC, and the
Trustee assumes no responsibility for the correctness of the same.
SECTION 5.04. Compensation, Indemnification and Lien of Trustee. CRC
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to receive, reasonable compensation. CRC also agrees to pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
herewith, including reasonable compensation and the expenses and disbursements
of its counsel or agents, except any such expense, disbursement or advance
arising from the Trustee's negligence or bad faith. CRC agrees to indemnify the
Trustee for and to hold it harmless against any loss, liability, tax or expense
incurred without wilful misconduct, negligence or bad faith on the part of the
Trustee, arising out of or in connection with the acceptance or administration
of the CRC Trust II or this Agreement, including the costs and expenses of
defending itself against any claim or liability in the premises. The Trustee
shall have the right to pay or reimburse itself for all such compensation,
expenses, disbursements, advances, losses, liabilities, taxes, expenses and
costs, out of any or all cash dividends and all other assets received by the
Trustee pursuant to Section 1.02 hereof. The Trustee shall have a lien prior to
that of the Grantors upon all the corpus of the CRC Trust II to secure such
payment or reimbursement, and if CRC fails to make any such payment or
reimbursement after a reasonable lapse of time after being requested to do so
the Trustee shall have the right to make such payment or reimbursement to itself
out of any or all of such corpus and to sell at public or private sale without
notice any or all trust assets to the extent necessary to make such payment or
reimbursement; provided, however, that the Trustee shall notify the Grantors
prior to exercising such lien.
SECTION 5.05. Merger or Consolidation of Trustee. In the event that
the Trustee shall merge into or consolidate with another bank or trust company,
the surviving corporation shall act as the Trustee hereunder without further
action of the parties hereto.
SECTION 5.06. Resignation and Removal, Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to CRC and all Grantors. Upon receiving such notice of
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resignation Grantors shall, by the vote, at a meeting or by proxy, of Grantors
holding a majority of the outstanding First Series Preference Shares held by
Grantors, promptly appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee, one
copy to the successor trustee and one copy to CRC. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee or any Grantor may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) In case at any time the Trustee shall fail to comply with the
provisions of this Agreement or if the Trustee shall become incapable of acting
or shall file for bankruptcy or become insolvent, or if receiver of the Trustee
or its property shall be appointed, or if any public officer shall take charge
or control of the Trustee or its property or affairs, then and in any such case
the Grantors may by the vote, at a meeting or by proxy, of Grantors holding a
majority of the outstanding First Series Preference Shares held by the Grantors
remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee so
removed, one copy to the successor trustee and one copy to CRC.
(c) Any resignation or removal of the Trustee and appointment of a
successor trustee shall become effective upon the acceptance in writing of the
appointment by the successor trustee and the agreement by such successor trustee
to the terms and provisions of this Agreement.
(d) Upon the appointment and acceptance of a successor trustee, the
Trustee shall promptly assign and transfer to such successor trustee, subject to
the provisions of Section 5.04 hereof, all shares of stock and other assets held
in the CRC Trust II and shall deliver to such successor trustee a certified list
of all the Grantors together with any other assets or property held in the CRC
Trust II.
ARTICLE VI
Duration of CRC Trust II
SECTION 6.01. Duration of Trust. The CRC Trust II shall continue
until the expiration of 20 years after the death of the last survivor of the
following persons (provided, however, that as to any part of the trust
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estate located in any jurisdiction in which such duration is not the CRC Trust
II created hereby shall terminate on the latest date permitted by the law of
such jurisdiction, using Xxxxxxxx Xxxxxxxx, Xxxx X. Xxxxxxxxxx and Xxxx X.
Xxxxxx, the initial Trustees of CPI, and the following persons as measuring
lives if so permitted):
Date of
Name Birth Address
---- ------- -------
Xxxxxxxx X. Xxxxx July 7, 1955 )
Xxxxxxx X. Xxxxx June 28, 1956 ) 00 Xxxx 00xx Xxxxxx
Disque X. Xxxxx, Xx. Sept. 23, 1959) New York, NY
Xxxxxx X. Xxxxx Sept. 24, 1962)
Xxxx X. Xxxxxx, III May 19, 1955 )
Xxxxxx Xxxxxx Xxxxxx Xxxx 6, 1957 ) 00 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxxx Dec. 5, 1959 ) Bronxville, NY
Xxxxx Xxxxxxx Xxxxxx July 13, 1962 )
Xxxxxxxxx Xxxxxxxx Xxxxxx Dec. 5, 1964 )
Xxxxxxx Xxxxxx Xxxxxx July 23, 1968 )
Xxxxxxx X. X'Xxxxxx May 27, 1969 ) 000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx X. X'Xxxxxx May 8, 1970 ) Bronxville, NY
SECTION 6.02. Termination. The CRC Trust II shall terminate prior
thereto upon the earlier to occur of (i) the termination of CPI, (ii)
notification to the Trustee of the vote to that effect, at a meeting or by
proxy, of Grantors holding two-thirds of the outstanding First Series Preference
Shares held by Grantors at any time after the termination or dissolution of the
CRC Trust and (iii) the conversion or redemption of all outstanding First Series
Preference Shares. As used in this Section 6.02, termination of CPI shall mean
the termination of CPI otherwise than in a transaction contemplated by Sections
7.01 or 7.02 hereof.
SECTION 6.03. Effect of Termination of Trust. Upon the termination
of the CRC Trust II, all assets then held in the CRC Trust II by the Trustee
shall be transferred and assigned by the Trustee to the Grantors in proportion
to their beneficial interests herein.
ARTICLE VII
First Series Preference Shares
SECTION 7.01. Conversion of CPI into Corporation. If the trust
creating CPI shall be converted
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into a corporation, the term "First Series Preference Shares" shall be deemed to
refer to the comparable shares of preferred stock of such corporation,
regardless of the name of such class or series.
SECTION 7.02. Merger, Consolidation or Exchange of First Series
Preference Shares. If (i) CPI shall merge or consolidate with or into, or sell
all or substantially all its assets to, any other business entity ("CPI
Transaction") and (ii) all First Series Preference Shares are canceled or deemed
canceled as a result of the CPI Transaction and (iii) CPI (and/or its
shareholders) shall receive shares of preferred stock of such entity or an
entity affiliated therewith as a result of the CPI Transaction, the term "First
Series Preference Shares" shall be deemed to refer to such shares of preferred
stock, regardless of class or series.
SECTION 7.03. Reclassification of First Series Preference Shares. If
any First Series Preference Shares are reclassified, the term "First Series
Preference Shares" as used in this Agreement shall be deemed to refer to the
preferred shares of CPI, after such reclassification, regardless of class or
series.
SECTION 7.04. CPI. The term "CPI" as used in this Agreement shall be
deemed to refer to any issuer from time to time of First Series Preference
Shares.
SECTION 7.05. Substituted CPI Issuer or Shares. If other shares of
CPI or of any corporation shall be deemed pursuant to this ARTICLE VII to be
First Series Preference Shares, appropriate descriptions of such shares (and of
any other shares which shall subsequently be deemed to be First Series
Preference Shares) and of the certificates representing them shall be deemed to
be substituted for references to First Series Preference Shares and to
certificates representing First Series Preference Shares wherever used in this
Agreement and the name of any such other corporation shall be deemed substituted
for or added to "CPI".
ARTICLE VIII
Miscellaneous Provisions
SECTION 8.01. Amendments. This Agreement may be amended by the
affirmative vote or written consent of Grantors holding at least two-thirds of
the outstanding First Series Preference Shares held by Grantors; provided,
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however, that no amendment shall (i) change the proportionate beneficial
interests of the Grantors in the CRC Trust II without the affirmative vote or
written consent of all such Grantors; or (ii) make any provision not uniformly
applicable to all stock of CRC theretofore or thereafter deposited in the CRC
Trust II, regardless of the time of deposit; or (iii) require or authorize the
Trustee to engage in any business; or (iv) change the termination provisions in
ARTICLE VI hereof. In the event that any such amendment, in the opinion of the
Trustee, adversely affects its obligations, rights or responsibilities, such
amendment shall not become effective until 30 days after a copy thereof has been
delivered to the Trustee or until such time as a resignation of the Trustee,
written notice of which shall have been given after such copy of such amendment
shall have been so delivered to the Trustee, shall take place under Section
5.06(a) hereof, whichever is later, unless prior thereto the Trustee consents to
such amendment.
SECTION 8.02. Communications. Any notice or communication by the
Grantors or CRC to the Trustee will be deemed to have been sufficiently given or
made for all purposes if it is given or made in writing addressed to the Trustee
at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Trust Officer. Any
notice or communication by the Trustee to any Grantor will be deemed to have
been sufficiently given or made for all purposes if it is given or made in
writing addressed to the Grantor at the address shown on the books of CPI. Any
notice or communication by the Trustee to CRC will be deemed to have been
sufficiently given or made for all purposes if it is given or made in writing
addressed to CRC at its office at Three Xxx Xxxxxxxxxxxx Plaza, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 8.03. Definition of "Trustee". Wherever used in this
Agreement the term "Trustee" shall refer to the Trustee herein named and to any
successor trustee appointed as herein provided which accepts the office as
Trustee.
SECTION 8.04. Execution and Governing Law. This Agreement is
executed and acknowledged with reference to the statutes and laws of the State
of New York and the rights of all parties and the construction and effect of
every provision hereof shall be subject to and construed according to the
statutes and laws of said State.
SECTION 8.05. Securities Laws. If any Grantor has made or hereafter
makes any representation or warranty
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that he has acquired any First Series Preference Shares for investment and not
with a view to the sale or distribution thereof or has agreed or hereafter
agrees that he will not effect any transfer of any First Series Preference
Shares or any interest therein or right to purchase same except upon satisfying
certain conditions designed to ensure compliance with the securities laws, such
representation, warranty or agreement shall apply to his beneficial interest in
the CRC Trust II and to any securities received by him from the Trustee pursuant
hereto to the same extent as such representation, warranty or agreement applies
to his First Series Preference Shares (or would apply to his First Series
Preference Shares but for CPI's termination as contemplated in Section 6.02
hereof), except that any references therein to CPI shall be deemed to mean CRC.
Upon any registration of First Series Preference Shares under the Securities Act
of 1933 or the securities laws of any state, the Trustee shall cause CRC at its
expense to cause such of its securities held by the CRC Trust II which
correspond to the First Series Preference Shares being registered to be
registered thereunder, to the extent CPI deems appropriate in connection
therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
STICHTING PENSIOENFONDS VOOR,
DE GEZONDHEID GEESTELIJKE EN
MAATSCHAPPELIJKE BELANGEN,
by
/s/ J.H.W.R. van der Vlist
-----------------------------------
J.H.W.R. van der Vlist
by
/s/ Xxxxxx X. van der Puttelaar
-----------------------------------
Xxxxxx X. van der Puttelaar
ALASKA, PERMANENT FUND
CORPORATION,
by
/s/ Xxxx Jeans
-----------------------------------
Xxxx Jeans
Real Estate Investment Officer
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UNITED STATES STEEL & CARNEGIE
PENSION FUND, as Trustee for each
of the U.S. Steel Group Trust and
the Marathon Oil Group Trust,
by
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
Vice President-Investments
THE STATE STREET BANK & TRUST
COMPANY, not in its individual
capacity but solely as Trustee for
Telephone Real Estate Equity Trust,
by
/s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx
Vice President
CORPORATE REALTY CONSULTANTS,
INC.,
by
/s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
Chairman, President and
Chief Executive Officer
[Seal]
Attest:
/s/ Xxxxxxx X. Xxxxx
------------------------------
Secretary
BANK OF MONTREAL TRUST COMPANY,
by
/s/ Xxx Xxxxxxx
--------------------------------
Xxx Xxxxxxx
Assistant Vice President
16
16
[Seal]
Attest:
/s/ Xxxxxxx Xxxxx
-----------------
Assistant Secretary
17
EXHIBIT A to
CRC Trust II Agreement
See Certificate of Designation included herein
under Tab 1.
