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EXHIBIT 4.02
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of January 13, 1998, among EXCEL
REALTY TRUST, INC., a Maryland corporation, BANKBOSTON, N.A., a national banking
association, as Depositary, and all holders from time to time of Receipts (as
hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of the Company's Preferred
Stock (as hereinafter defined) with the Depositary for the purposes set forth in
this Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Stock
deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
SECTION 1.01. "Articles of Incorporation" shall mean the Amended
and Restated Articles of Incorporation, as amended from time to time, of the
Company.
SECTION 1.02. "Articles Supplementary" shall mean the Articles
Supplementary Classifying 690,000 Shares of Preferred Stock as 8-5/8% Series B
Cumulative Redeemable Preferred Stock filed with the Secretary of State of the
State of Maryland establishing the Preferred Stock as a series of Preferred
Stock of the Company.
SECTION 1.03. "Common Stock" shall mean shares of the Company's
common stock, $.01 par value per share.
SECTION 1.04. "Company" shall mean Excel Realty Trust, Inc., a
Maryland corporation, and its successors.
SECTION 1.05. "Corporate Office" shall mean the corporate office
of the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
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SECTION 1.06. "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.07. "Depositary" shall mean BankBoston, N.A., a company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000, and any successor as depositary hereunder.
SECTION 1.08. "Depositary Share" shall mean a fractional interest
of 1/10 of a share of Preferred Stock deposited with the Depositary hereunder
and the same proportionate interest in any and all other property received by
the Depositary in respect of such share of Preferred Stock and held under this
Deposit Agreement, all as evidenced by the Receipts issued hereunder. Subject to
the terms of this Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Preferred Stock represented by such Depositary Share, including the
distribution, voting, redemption, conversion and liquidation rights contained in
the Articles Supplementary.
SECTION 1.09. "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.10. "Preferred Stock" shall mean shares of the
Company's 8-5/8% Series B Cumulative Redeemable Preferred Stock, $.01 par value
per share, heretofore validly issued, fully paid and nonassessable.
SECTION 1.11. "Receipt" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.12. "record date" shall mean the date fixed pursuant to
Section 4.04.
SECTION 1.13. "record holder" or "holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.14. "Registrar" shall mean BankBoston, N.A., or any
bank or trust company appointed to register ownership and transfers of Receipts,
the deposited Preferred Stock, as the case may be, as herein provided.
SECTION 1.15. "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.16. "Transfer Agent" shall mean BankBoston, N.A. or any
bank or trust company appointed to transfer the Receipts, the deposited
Preferred Stock, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation of
definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with section 2.02, shall execute and deliver temporary
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Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at the Corporate Office or such other offices, if any,
as the Depositary may designate, without charge to the holder. Upon surrender
for cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall in
all respects be entitled to the same benefits under this Deposit Agreement, and
with respect to the Preferred Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall
be in denominations of any number of whole Depositary shares. All Receipts shall
be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Preferred Stock, the Depositary Shares
or the Receipts may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by
such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.04, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of distributions,
the exercise of any conversion rights or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery
of Receipts in Respect Thereof. Concurrently with the execution of this Deposit
Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 600,000
shares of Preferred Stock, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement and (ii) a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Stock. The Depositary acknowledges receipt
of the deposited Preferred Stock and related documentation and agrees to hold
such deposited Preferred Stock in an account to be established by the Depositary
at the Corporate Office or at such other office as the Depositary shall
determine. The Company hereby appoints the Depositary as the
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Registrar and Transfer Agent for the Preferred Stock deposited hereunder and the
Depositary hereby accepts such appointment and, as such, will reflect changes in
the number of shares (including any fractional shares) of deposited Preferred
Stock held by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Stock presented for
deposit by the Company at any time, whether or not the register of stockholders
of the Company is closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary, that will
provide for the prompt transfer to the Depositary or its nominee of any
distribution or right to subscribe for additional Preferred Stock or to receive
other property that any person in whose name the Preferred Stock is or has been
registered may thereafter receive upon or in respect of such deposited Preferred
Stock, or in lieu thereof such agreement of indemnity or other agreement as
shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates
for Preferred Stock deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Stock in the name of the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to, or upon the order of, the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts for the number
of whole Depositary Shares representing the Preferred Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Corporate Office, except that, at the request, risk and expense of any person
requesting such delivery, such delivery may be made at such other place as may
be designated by such person.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of distributions
of Preferred Stock, if any, there shall be deposited hereunder not more than the
number of shares constituting the Preferred Stock as set forth in the Articles
Supplementary, as such may be amended.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
SECTION 2.03. Optional Redemption of Preferred Stock for Cash.
Whenever the Company shall elect to redeem shares of deposited Preferred Stock
for cash in accordance with the provisions of the Articles Supplementary, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days' prior written notice of the date of such
proposed redemption and of the number of such shares of Preferred Stock held by
the Depositary to be redeemed and the applicable redemption price, as set forth
in the Articles Supplementary, including the amount, if any, of accrued and
unpaid distributions to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Preferred Stock and the
proposed simultaneous redemption of the Depositary Shares representing the
Preferred Stock to be redeemed, not less than 30 and not more than 60 days prior
to the date fixed for redemption of such Preferred Stock and Depositary Shares
(the "cash redemption date"), to the holders of record on the record date fixed
for such redemption pursuant to Section 4.04 hereof of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as the
same appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any such notice shall
affect the sufficiency of the proceedings for redemption as to other holders.
The Company shall provide the Depositary with such notice, and each such notice
shall state: the cash redemption date; the cash redemption price; the number of
shares of deposited Preferred Stock and Depositary Shares to be redeemed; if
fewer than all the Depositary shares held by any holder are to be redeemed, the
number of such Depositary Shares held by such holder to be so redeemed; the
place or places where Receipts evidencing Depositary Shares to be redeemed are
to be surrendered for payment of the cash redemption price; and that from and
after the cash redemption date distributions in respect of the Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accrue. If
fewer than
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all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed shall be selected by lot or pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. The Company shall also cause notice
of redemption to be published in The Wall Street Journal or The New York Times,
or if neither such newspaper is then being published, any other daily newspaper
of general circulation in The City of New York, at least once a week for two
successive weeks commencing not less than 30 nor more than 60 days prior to the
cash redemption date.
In the event that notice of redemption has been made as described
in the immediately preceding paragraph and the Company shall then have paid in
full to the Depositary the cash redemption price (determined pursuant to the
Articles Supplementary) of the Preferred Stock deposited with the Depositary to
be redeemed (including any accrued and unpaid distributions to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph), all distributions in
respect of the shares of Preferred Stock called for redemption shall cease to
accrue, the Depositary Shares called for redemption shall be deemed no longer to
be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the cash redemption price and any
money or other property to which holders of such Receipts were entitled upon
such redemption) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
it the Depositary shall so require), such Depositary Shares shall be redeemed at
a cash redemption price of $25.00 per Depositary Share plus any other money and
other property payable in respect of such Preferred Stock. The foregoing shall
be further subject to the terms and conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.04. Registration of Transfers of Receipts. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement, together with evidence of the payment of any transfer taxes as may
be required by law. Upon such surrender, the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other office
as the Depositary may designate for the purpose of effecting a split-up or
combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred
Stock. Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Stock represented by the Depositary Shares evidenced by such
Receipt or Receipts and all money and other property, if any, represented by
such Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals. After such surrender, without unreasonable delay, the
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Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole or fractional shares
of such Preferred Stock and all such money and other property, if any,
represented by the Depositary shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole or fractional shares of
Preferred Stock will not thereafter be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Preferred Stock to be withdrawn, the Depositary shall at the same
time, in addition to such number of whole or fractional shares of Preferred
Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of Depositary Shares. Delivery of such
Preferred Stock and such money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate, which, if required by the Depositary, shall
be properly endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property
being withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and
the money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office, except
that, at the request, risk and expense of the holder surrendering such Receipt
or Receipts and for the account of the holder thereof, such delivery may be made
at such other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination. Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to the Preferred Stock being deposited or withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement as may be required by any
securities exchange upon which the deposited Preferred Stock, the Depositary
Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of
Receipts against Preferred Stock may be suspended, the transfer of Receipts may
be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period when
the register of stockholders of the Company is closed or (ii) if any such action
is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of this Deposit Agreement.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange
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and substitution for such mutilated Receipt or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Preferred Stock for deposit or any holder of a Receipt may
be required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the deposited Preferred Stock represented by the Depositary Shares evidenced by
any Receipt, the distribution of any distribution or the sale of any rights or
of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.07, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid. Until
such payment is made, transfer of any Receipt or any withdrawal of the Preferred
Stock or money or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any distribution may be withheld, and
any part or all of the Preferred Stock or other property represented by the
Depositary Shares evidenced by such Receipt may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the bolder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Representations and Warranties as to Preferred
Stock. In the case of the initial deposit of the Preferred Stock hereunder, the
Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Stock under this Deposit Agreement, shall be deemed thereby
to represent and warrant that such Preferred Stock and each certificate therefor
are valid and that the person making such deposit is duly authorized to do so.
The Company hereby further represents and warrants that such Preferred Stock,
when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred Stock
and the issuance of Receipts.
SECTION 3.04. Representation and Warranty as to Receipts and
Depositary Shares. The Company hereby represents and warrants that the Receipts,
when issued, will evidence legal and valid interests in the Depositary Shares
and each Depositary Share will represent a legal and valid 1/10 fractional
interest in a share of deposited Preferred Stock. Such representation and
warranty shall survive the deposit of the Preferred Stock and the issuance of
Receipts evidencing the Depositary Shares.
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ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash distribution on the deposited Preferred Stock, including any
cash received upon redemption of any shares of Preferred Stock pursuant to
Section 2.03, the Depositary shall, subject to Section 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of such sum as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that, in case the Company or the Depositary shall be
required to and shall withhold from any cash distribution in respect of the
Preferred Stock represented by the Receipts held by any holder an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly. The Depositary shall distribute or
make available for distribution, as the case may be, only such amount, however,
as can be distributed without attributing to any holder of Receipts a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the deposited
Preferred Stock, the Depositary shall, subject to Section 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes), the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.01
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names deposited Preferred Stock is registered on the books of the Company
any rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in such manner as the
Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed by the Company, and if applicable laws or the terms
of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders at public or private
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sale, at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Section 3.01 and Section 3.02, be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the Depositary an opinion
of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Distributions; Fixing of Record Date for
Holders of Receipts. Whenever any cash distribution shall become payable, any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the deposited Preferred
Stock, or whenever the Depositary shall receive notice of (i) any meeting at
which holders of such Preferred Stock are entitled to vote or of which holders
of such Preferred Stock are entitled to notice or (ii) any election on the part
of the Company to redeem any shares of such Preferred Stock, the Depositary
shall in each such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to the Preferred Stock) for
the determination of the holders of Receipts who shall be entitled to receive
such distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or whose Depositary Shares are to
be so redeemed.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of deposited Preferred Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice, which shall be provided by the Company and which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date fixed pursuant to Section 4.04 will be entitled, subject
to any applicable provision of law, to instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Preferred Stock
represented by their respective Depositary Shares and (iii) a brief statement as
to the manner in which such instructions way be given. Upon the written request
of a holder of a Receipt on such record date, the Depositary shall vote or cause
to be voted the amount of Preferred Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. To the extent any such instructions request the voting of a fractional
interest of a share of deposited Preferred Stock, the Depositary shall aggregate
such interest with all other fractional interests resulting from requests with
the same voting instructions and shall vote the number of whole votes resulting
from such aggregation in accordance with the instructions received in such
requests. Each share of Preferred Stock is entitled to 10 votes and,
accordingly, each Depositary
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Share is entitled to one vote. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred stock or cause such Preferred Stock to be
voted. In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required to exercise discretion in voting any Preferred Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of Preferred Stock,
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company, (i) make such adjustments in (a) the fraction of an
interest represented by one Depositary Share in one share of Preferred Stock and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a share of Preferred Stock, in each case as may be required by or as is
consistent with the provisions of the Articles Supplementary to fully reflect
the effects of such change in liquidation value, split-up, combination or other
reclassification of stock, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares of stock or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Stock. In any such case the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Preferred Stock or any
such recapitalization, reorganization, merger, amalgamation or consolidation or
sale of substantially all the assets of the Company to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the
Preferred Stock represented thereby only into or for, as the case may be, the
kind and amount of shares of stock and other securities and property and cash
into which the deposited Preferred Stock evidenced by such Receipts might have
been converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction. The
Company shall cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of the deposited Preferred Stock
for securities or property or cash of the surviving corporation in connection
with the transactions set forth above. The Company shall cause any such
surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of deposited Preferred Stock and
made generally available to the holders of the Preferred Stock. In addition, the
Depositary shall transmit certain notices and reports to the holders of Receipts
as provided in Section 5.05.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the Company a
list, as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii)
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withholding 31% (or any withholding as may be required at the then applicable
rate) of distributions from eligible holders of Receipts, (iv) mailing W-9 forms
to new holders of Receipts without a certified taxpayer identification number,
(v) processing certified W-9 forms, (vi) preparation and filing of state
information returns and (vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary and the Registrar. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the New
York Stock Exchange, Inc. or any other stock exchange, the Depositary may, with
the approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such Exchange) may be removed and a substitute
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Preferred Stock are
listed on one or more other stock exchanges, the Depositary will, at the request
and expense of the Company, arrange such facilities for the delivery, transfer,
surrender, redemption and exchange of such Receipts, such Depositary Shares or
such Preferred Stock as may be required by law or applicable stock exchange
regulations.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary, any Depositary's Agent, any Registrar nor the Company shall incur
any liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Articles of Incorporation or the Articles Supplementary or, in
the case of the Company, the Depositary, the Depositary's Agent or the
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Xxxxxxxxx
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or the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary, any Depositary's
Agent, any Registrar nor the Company assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to holders of
Receipts other than from acts or omissions arising out of conduct constituting
bad faith, negligence, gross negligence or willful misconduct in the performance
of such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity reasonably satisfactory to it against all
expense and liability be furnished as often as may be required.
Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
provided by any person presenting Preferred Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to give
such information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the deposited Preferred Stock or for the
manner or effect of any such vote made, as long as any such action or non-action
is in good faith and does not result from negligence or willful misconduct of
the Depositary. The Depositary undertakes, and any Registrar shall be required
to undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of
securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's
Agent shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the deposited Preferred Stock;
provided, however, that the Depositary agrees to comply with all information
reporting and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
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Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
deposited Preferred Stock, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement and for the validity of any action taken or required to be
taken by the Depositary in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred
Stock and the Depositary Shares in accordance with the applicable securities
laws.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Stock and any moneys
or property held hereunder to such successor and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. Notices, Reports and Documents. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Articles of
Incorporation and the Articles Supplementary to be furnished by the Company to
holders of the deposited Preferred Stock and, if requested by the holder of any
Receipt, a copy of this Deposit Agreement, the form of
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Receipt, the Articles Supplementary and the form of Preferred Stock. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company agrees
to indemnify the Depositary, any Depositary's Agent and any Registrar against,
and hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of, or in connection
with, its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability arising
out of the willful misconduct, gross negligence, negligence (in the case of an
action or inaction with respect to the voting of the deposited Preferred Stock)
or bad faith on the part of any such person or persons. The obligations of the
Company met forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent or termination of this Deposit
Agreement.
SECTION 5.07. Fees, Charges and Expenses. No charges and expenses
of the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.07. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the
Preferred Stock and the initial issuance of the Depositary Shares evidenced by
the Receipts, any redemption of the Preferred Stock at the option of the Company
and all withdrawals of the Preferred Stock by holders of Depositary Shares. If a
holder of Receipts requests the Depositary to perform duties not required under
this Deposit Agreement, the Depositary shall notify the holder of the cost of
the performance of such duties prior to the performance thereof. Such holder
will be liable for the charges and expenses related to such performance. All
other fees and expenses of the Depositary and any Depositary's Agent hereunder
and of any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
promptly paid as previously agreed between the Depositary and the Company. The
Depositary shall present its statement for fees and expenses to the Company
every month or at such other intervals as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable; provided, however, that no such amendment
(other than any change in the fees of any Depositary, Registrar or Transfer
Agent) which (i) shall materially and adversely alter the rights of the holders
of Receipts or (ii) would be materially and adversely inconsistent with the
rights granted to the holders of the Preferred Stock pursuant to the Articles
Supplementary shall be effective unless such amendment shall have been approved
by the holders of at least a majority of the Depositary Shares then outstanding.
In no event shall any amendment impair the right, subject to the provisions of
Section 2.06 and Section 2.07 and Article III, of any holder of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the deposited Preferred
Stock and all money and other property if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve
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the Company's status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (or any successor provision) or (ii) the
holders of a majority of the Preferred Stock consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder, such number of whole
or fractional shares of deposited Preferred Stock as are represented by the
Depositary Shares evidenced by such Depositary Receipt, together with any other
property held by the Depositary in respect of such Receipt. In the event that
this Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Stock issued upon surrender of the Receipt evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (i) all outstanding Depositary
Shares shall have been redeemed pursuant to Section 2.03 or (ii) there shall
have been made a final distribution in respect of the deposited Preferred Stock
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.06 and Section 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Deposit
Agreement. Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open to inspection during business
hours at the Corporate Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
EXCEL REALTY TRUST, INC.
00000 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Telephone No.: (000) 000-0000
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or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder or a Receipt hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary in a timely manner a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York applicable to agreements made and to be performed in said
State.
SECTION 7.08. Inspection of Deposit Agreement and Articles
Supplementary. Copies of this Deposit Agreement and the Articles Supplementary
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of any Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Excel Realty Trust, Inc. and BankBoston, N.A.
have duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
EXCEL REALTY TRUST, INC.
By: /s/ XXXX X. XXXXX
--------------------------------
Xxxx X. Xxxxx
Chief Executive Officer
BANKBOSTON, N.A.
By: /s/ XXXXXXXX X. XXXXXXXX
--------------------------------
Xxxxxxxx X. Xxxxxxxx
Authorized Signatory
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EXHIBIT A
Form of Receipt
A-1
19
[GRAPHIC]
Temporary Receipt Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
IMPORTANT NOTICE - RESTRICTIONS ON TRANSFER AND OWNERSHIP
The Depositary Shares represented by this Depositary Receipt are subject
to restrictions on ownership and transfer for the Corporation's maintenance of
its status as a "real estate investment trust" under the Internal Revenue Code
of 1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no Person may Beneficially Own or Constructively Own shares of
Common Stock and/or Preferred Stock (and, accordingly, Depositary Shares or
Depositary Receipts representing such shares) of the Corporation in excess of
9.8% (or such greater percentage as may be determined by the Board of Directors
of the Corporation) of the value of the outstanding Common Stock and Preferred
Stock of the Corporation. Any Person who attempts or proposes to Beneficially
Own or Constructively Own shares of Common Stock and/or Preferred Stock (and,
accordingly, Depositary Shares or Depositary Receipts representing such shares)
in excess of the above limitation must notify the Corporation in writing at
least 15 days prior to such proposed or attempted Transfer. All capitalized
terms used in this legend have the meanings defined in the Charter of the
Corporation, a copy of which, including the restrictions on transfer and
ownership, will be sent without charge to each holder hereof who so requests. If
the restrictions on transfer or ownership are violated, the Preferred Stock
represented by the Depositary Shares may be automatically transferred to a trust
for the benefit of one or more charitable organizations to be designated by the
Corporation. In addition, attempted transfers in violation of the limitations
described above may be void ab initio.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING 1/10th OF A
SHARE OF 8-5/8% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
EXCEL REALTY TRUST, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
DEPOSITARY SHARES
THIS DEPOSITARY RECEIPT IS TRANSFERABLE
IN BOSTON, MA OR NEW YORK, NY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 30067R 40 4
BANKBOSTON, N.A., as Depositary (the "Depositary"), hereby certifies that
is the registered owner of Depositary Shares
("Depositary Shares"), each Depositary Share representing 1/10th of one share of
8-5/8% Series B Cumulative Redeemable Preferred Stock (the "Stock"), of Excel
Realty Trust, Inc., a Maryland corporation (the "Corporation"), on deposit with
the Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of January 13, 1998 (the "Deposit Agreement"), between the
Corporation, the Depositary and all holders from time to time of Depositary
Receipts. By accepting this Depositary Receipt, the holder hereof becomes a
party to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Depositary Receipt shall not be valid or obligatory for any
purpose or be entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual and/or facsimile
signature of a duly authorized officer.
The Corporation is authorized to issue Common Stock and one or more
series or classes of Preferred Stock. The Corporation will furnish without
charge to each receiptholder, who so requests in writing, a statement of the
rights, preferences, privileges and restrictions granted to or imposed upon the
respective classes of shares and upon the holders thereof, a copy of the
Corporation's Charter and Bylaws, and a copy of the Deposit Agreement. Any such
request shall be made to the Corporation at the principal office of the
Corporation at 00000 Xxx Xxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Secretary.
This Depositary Receipt is continued on the reverse hereof and the
additional provisions therein set forth (including, without limitation, those
relating to redemption) for all purposes have the same effect as if set forth at
this place.
Dated:
Countersigned
BankBoston, N.A.
Depositary, Transfer Agent and Registrar
By: [SIG]
-------------------------------------
AUTHORIZED OFFICER
20
EXCEL REALTY TRUST, INC.
THE DEPOSITARY SHARES REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT
TO THE PROVISIONS OF THE CHARTER AND BYLAWS OF THE CORPORATION, INCLUDING, BUT
NOT LIMITED TO, (1) SECTION 5 OF THE ARTICLES SUPPLEMENTARY RELATING TO THE
STOCK, WHICH CONFERS UPON THE CORPORATION THE RIGHT, ON OR AFTER JANUARY 13,
2003, TO CALL FOR REDEMPTION THE STOCK, (2) SECTION 9 OF THE ARTICLES
SUPPLEMENTARY AND ARTICLE VII OF THE CHARTER OF THE CORPORATION WHICH IMPOSE
CERTAIN RESTRICTIONS ON TRANSFER OR OWNERSHIP OF THE COMMON STOCK AND THE
PREFERRED STOCK (INCLUDING THE STOCK AND, ACCORDINGLY, THE DEPOSITARY SHARES
REPRESENTING THE STOCK, AND THE DEPOSITARY RECEIPTS) OF THE CORPORATION FOR THE
PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS STATUS OF A "REAL ESTATE
INVESTMENT TRUST" UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, INCLUDING
PROVISIONS THEREOF WHICH PROVIDE (A) THAT NO PERSON MAY BENEFICIALLY OWN OR
CONSTRUCTIVELY OWN SHARES OF COMMON STOCK AND/OR PREFERRED STOCK (INCLUDING THE
STOCK) IN EXCESS OF 9.8% (OR SUCH GREATER PERCENTAGES AS MAY BE DETERMINED BY
THE BOARD OF DIRECTORS OF THE CORPORATION) OF THE VALUE OF THE OUTSTANDING
COMMON STOCK AND PREFERRED STOCK OF THE CORPORATION; (B) THAT ANY PERSON WHO
ATTEMPTS OR PROPOSES TO BENEFICIALLY OWN OR CONSTRUCTIVELY OWN SHARES OF COMMON
STOCK OR PREFERRED STOCK IN EXCESS OF THE ABOVE LIMITATION MUST NOTIFY THE
CORPORATION; (C) THAT, IF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP ARE
VIOLATED, THE SUBJECT SECURITIES MAY BE AUTOMATICALLY TRANSFERRED TO A TRUST FOR
THE BENEFIT OF ONE OR MORE CHARITABLE ORGANIZATIONS TO BE DESIGNATED BY THE
CORPORATION; AND (D) THAT ANY TRANSFER IN VIOLATION OF THE LIMITATIONS DESCRIBED
ABOVE MAY BE VOID AB INITIO. THE TERMS "PERSON", "BENEFICIALLY OWN" AND
"CONSTRUCTIVELY OWN", AS USED ABOVE SHALL HAVE THE MEANINGS ASCRIBED IN THE
CHARTER OF THE CORPORATION, A COPY OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH
HOLDER HEREOF WHO SO REQUESTS.
1. THE DEPOSIT AGREEMENT. Depositary Receipts, of which this Depositary
Receipt is one, are made available upon the terms and conditions set forth in
the Deposit Agreement, dated as of January 13, 1998 (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time of
Depositary Receipts. The Deposit Agreement (copies of which are on file at the
principal office maintained by the Depositary which at the time of the execution
of the Deposit Agreement is located at 000 Xxxxxx Xxxxxx, Mail Stop: 45-02-62,
Xxxxxx, XX 00000 (the "Depositary's Office") and at the office of any agent of
the Depositary) sets forth the rights of holders of Depositary Receipts and the
rights and duties of the Depositary. The statements made on the face and the
reverse of this Depositary Receipt are summaries of certain provisions of the
Deposit Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions of
this Depositary Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. DEFINITIONS. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem
shares of Stock, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary not less than 60 days' notice of the date of
such proposed redemption and of the number of such shares of Stock held by the
Depositary to be so redeemed and the applicable redemption price. The Depositary
shall mail, first-class postage prepaid, notice of the redemption of Stock and
the proposed simultaneous redemption of Depositary Shares representing the Stock
to be redeemed, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares, to the record holders
of the Depositary Receipts evidencing the Depositary Shares to be so redeemed,
at the addresses of such holders as the same appear on the records of the
Depositary. Any such notice shall also be published in the same manner as
notices of redemption of the Stock are required to be published by the Company.
On the date of such redemption, the Depositary shall redeem the number of
Depositary Shares representing such redeemed Stock; provided, that the Company
shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such redemption. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be determined pro rata or by lot in a
manner determined by the Board of Directors. Notice having been mailed as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the shares of Stock evidenced by
the Depositary Shares called for redemption), dividends on the shares of Stock
so called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with said notice of
the Depositary Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary or applicable law shall so require),
such Depositary Shares shall be redeemed at a redemption price per Depositary
Share equal to the same fraction of the redemption price per share paid with
respect to the shares of Stock as the fraction each Depositary Share represents
of a share of Stock plus the same fraction of all money and other property, if
any, represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the shares of Stock to be so redeemed and have not theretofore been paid. The
foregoing is subject further to the terms and conditions of the Certificate of
Determination. If fewer than all of the Depositary Shares evidenced by this
Depositary Receipt are called for redemption, the Depositary will deliver to the
holder of this Depositary Receipt upon its surrender to the Depositary, together
with the redemption payment, a new Depositary Receipt evidencing the Depositary
Shares evidenced by such prior Depositary Receipt and not called for redemption.
4. SURRENDER OF DEPOSITARY RECEIPTS AND WITHDRAWAL OF STOCK. Upon
surrender of this Depositary Receipt to the Depositary at the Depositary's
Office or at such other offices as the Depositary may designate, and subject to
the provisions of the Deposit Agreement, the holder hereof is entitled to
withdraw, and to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole shares of
Stock) and all money and other property, if any, at the time represented by the
Depositary Shares evidenced by this Depositary Receipt; provided, however, that,
in the event this Depositary Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall, in addition to
such whole number of shares of Stock and such money and other property, if any,
to be withdrawn, deliver, to or upon the order of such holder, a new Depositary
Receipt or Depositary Receipts evidencing such excess number of whole Depositary
Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to the Deposit Agreement,
this Depositary Receipt is transferable on the books of the Depositary upon
surrender of this Depositary Receipt to the Depositary, properly endorsed or
accompanied by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Depositary Receipt or
Depositary Receipts to or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This Depositary Receipt may be
split into other Depositary Receipts or combined with other Depositary Receipts
into one Depositary Receipt evidencing the same aggregate number of Depositary
Shares evidenced by the Depositary Receipt or Depositary Receipts surrendered;
provided, however, that the Depositary shall not issue any Depositary Receipt
evidencing a fractional Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC., OF DEPOSITARY
RECEIPTS. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Depositary Receipt, the
Depositary, any of the Depositary's Agents or the Company may require any or all
of the following: (i) payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto; (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be
refused, the delivery of this Depositary Receipt against Stock may be suspended,
the registration of transfer of Depositary Receipts may be refused and the
registration of transfer, surrender or exchange of this Depositary Receipt may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement.
8. AMENDMENT. The form of the Depositary Receipts and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any changes in the fees of any Depositary or Registrar which shall go into
effect not sooner than three months after Notice thereof to the holders of the
Depositary Receipts) which shall materially adversely alter the rights of
holders of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Depositary Receipt, to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the owner of the Depositary
Shares evidenced by this Depositary Receipt to surrender this Depositary Receipt
with instructions to the Depositary to deliver to the holder the Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
9. CHARGES AND EXPENSES. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangement, except such charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts.
10. TITLE TO DEPOSITARY RECEIPTS. Title to this Depositary Receipt, when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive
any cash distribution on the Stock, the Depositary shall, subject to the
provisions of the Deposit Agreement, distribute to record holders of Depositary
Receipts such amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Depositary Receipts held by such holders; provided, however, that in case the
Company or the Depositary shall be required by law to withhold and does withhold
from any cash distribution in respect of the Stock an amount on account of taxes
or as otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Receipts a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for distribution to
record holders of Depositary Receipts then outstanding.
12. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall
at any time offer or cause to be offered to the persons in whose name Stock is
registered on the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or privileges shall in
each such instance, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Depositary Receipts in such
manner as the Company shall instruct.
13. NOTICE OF DISTRIBUTIONS, FIXING OF RECORD DATE. Whenever (i) any
cash distribution shall become payable, or any distribution other than cash
shall be made, or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, (ii) the Depositary shall receive notice of
any meeting at which holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice or (iii) the Depositary shall receive notice of
any election on the part of the Company to redeem any shares of Stock, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Depositary Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or whose Depositary Shares are to be so redeemed.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Depositary Receipts a
notice, which shall contain (i) such information as is contained in such notice
of meeting, (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary Shares, and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Depositary Receipt on such
record date the Depositary shall vote or cause to be voted the Stock represented
by the Depositary Shares evidenced by this Depositary Receipt in accordance with
the instructions set forth in such request. The Company hereby agrees to take
all action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of this Depositary Receipt, the Depositary
will abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by this Depositary Receipt.
15. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall transmit
to the record holders of Depositary Receipts copies of all reports and
communications received from the Company that are received by the Depositary as
the holder of Stock. The Depositary shall keep books at the Corporate Office for
the registration and transfer of Depositary Receipts, which books at all
reasonable times will be open for inspection by the record holders of Depositary
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares.
16. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder of this
Depositary Receipt, if by reason of any provision of any present or future law
or regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Articles of Incorporation or the Articles
Supplementary by reason of any act of God or war or other circumstances beyond
the control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of this
Depositary Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
17. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement or this Depositary Receipt to the holder
hereof or other persons, other than for its negligence, gross negligence,
willful misconduct or bad faith. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Depositary Receipts that in its reasonable opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company will be liable for any action or failure to act by it in reliance upon
the written advice of or information from legal counsel or accountants or
information provided by any person presenting Stock for deposit, any holder of
this Depositary Receipt or any other person believed by it in good faith to be
competent to give such advice or information.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor provision) or (ii) the holders of a majority
of the Stock consent to such termination, whereupon the Depositary shall deliver
or make available to each holder of a Depositary Receipt, upon surrender of the
Depositary Receipt held by such holder, such number of whole or fractional
shares of deposited Stock as are represented by the Depositary Shares evidenced
by such Depositary Receipt, together with any other property held by the
Depositary in respect of such Depositary Receipt. Upon the termination of the
Deposit Agreement, the Company shall be discharged to all obligations thereunder
except for its obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.6 and 5.7 of the Deposit Agreement.
19. GOVERNING LAW. The Deposit Agreement and this Depositary Receipt and
all rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM = as tenants in common
TEN ENT = as tenants by the entireties
JT TEN = as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT ........... Custodian ...............
(Cust) (Minor)
under Uniform Gifts to Minors
Act .....................................
(State)
UNIF TRF MIN ACT ........ Custodian (until age .......)
(Cust)
.................. under Uniform Transfers
(Minor)
to Minors Act ............................
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Depositary Shares represented by the within Depositary Receipt, and do hereby
irrevocably constitute and appoint
-----------------------------------------------------------------------Attorney
to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution
Dated Signed
------------------------------- ---------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THIS DEPOSITARY RECEIPT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
----------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS
WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-16.
----------------------------------------------------
AMERICAN BANK NOTE COMPANY JAN 12, 1998 fm
0000 XXXXXXXX XXXXXX
XXXXX 00
XXXX XXXXX, XX 00000 054595bk
(000) 000-0000
(FAX) (000) 000-0000 Proof ___ REV 3
----------------------------------------------------
