DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of July 3, 1997, among NEW PLAN REALTY
TRUST, a Massachusetts business trust (the "Company") and 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 the Company's Preferred Shares (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 Shares
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 1.1 "Certificate of Designation" shall mean the
Certificate of Designation supplementing the Declaration of Trust of the
Company authorized by resolution of the Board of Trustees of the Company on
June 30, 1997 and to be filed with the office of the Secretary of State of
the Commonwealth of Massachusetts establishing the Preferred Shares as a
series of preferred shares of the Company.
SECTION 1.2 "Company" shall mean New Plan Realty Trust, a
Massachusetts business trust, and its successors.
SECTION 1.3 "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 150 Royall Street, Canton,
Massachusetts 02021 and c/o Securities Transfer & Reporting Services, Inc.,
55 Broadway, 3rd Floor, New York, New York 10006.
SECTION 1.4 "Declaration of Trust" shall mean the Amended and
Restated Declaration of Trust, as amended from time to time, of the Company.
SECTION 1.5 "Deposit Agreement" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.6 "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 1.7 "Depositary Share" shall mean a fractional interest
of 1/10 of a Preferred Share deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such Preferred Share and held under this Deposit
Agreement, as all 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 Share represented by such Depositary Share, including, if any,
the dividend, voting, redemption, conversion and liquidation rights contained
in the Certificate of Designation.
SECTION 1.8 "Depositary's Agent" shall mean an agent appointed
by the Depositary as provided, and for the purposes specified, in Section
7.5.
SECTION 1.9 "Preferred Shares" shall mean the Company's 7.80%
Series A Cumulative Step-Up Premium Rate Preferred Shares, $1.00 par value
per share.
SECTION 1.10 "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 as set forth as Exhibit A hereto.
SECTION 1.11 "record date" shall mean the date fixed pursuant to
Section 4.4.
SECTION 1.12 "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 1.13 "Registrar" shall mean BankBoston N.A. or any bank
or trust company appointed to register ownership and transfers of Receipts or
the deposited Preferred Shares, as the case may be, as herein provided.
SECTION 1.14 "Securities Act" shall mean the Securities Act of
1933, as amended.
SECTION 1.15 "Transfer Agent" shall mean BankBoston N.A. or any
bank or trust company appointed to transfer the Receipts or the deposited
Preferred Shares, as the case may be, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1 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 2.2, shall execute and
deliver temporary 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 Shares 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 Shares,
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 2.4, 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 dividends or other distributions, the
exercise of any conversion rights or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery
of Receipts in Respect Thereof. Upon consummation of the public offering,
pursuant to which the Depositary Shares are expected to be sold, the Company
shall deliver to the Depositary a certificate or certificates, registered in
the name of the Depositary and evidencing up to 150,000 Preferred Shares,
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 Shares. At such time, the Depositary shall acknowledge
receipt of the deposited Preferred Shares and related documentation and
agrees to hold such deposited Preferred Shares 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 Registrar and Transfer Agent for Preferred Shares 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 Shares held by it by notation, book-entry or
other appropriate method.
If required by the Depositary, Preferred Shares presented for
deposit by the Company at any time, whether or not the register of
shareholders 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 dividend or right to subscribe for additional Preferred Shares or to
receive other property that any person in whose name the Preferred Shares is
or has been registered may thereafter receive upon or in respect of such
deposited Preferred Shares, or in lieu thereof such agreement of indemnity or
other agreements as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares 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 2.2, a Receipt or Receipts
for the number of whole Depositary Shares representing the Preferred Shares
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 Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred
Shares as set forth in the Certificate of Designation, 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 2.3 Optional Redemption of Preferred Shares for Cash.
Whenever the Company shall elect to redeem deposited Preferred Shares for
cash in accordance with the provisions of the Certificate of Designation, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 40 days' prior written notice of the date of such
proposed redemption and of the number of such Preferred Shares held by the
Depositary to be redeemed and the applicable redemption price, as set forth
in the Certificate of Designation, including the amount, if any, of accrued
and unpaid dividends to the date of such redemption. The Depositary shall
mail, first-class postage prepaid, notice of the redemption of Preferred
Shares and the proposed simultaneous redemption of the Depositary Shares
representing the Preferred Shares to be redeemed, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Preferred
Shares and Depositary Shares (the "cash redemption date"), to the holders of
record on the record date fixed for such redemption pursuant to Section 4.4
hereof of the Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as the same appears on the records of the
Depositary, but neither failure to mail any such notice to one or more of
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 deposited
Preferred Shares 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 dividends in respect of the Preferred Shares
represented by the Depositary Shares to be redeemed will cease to accrue. If
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected 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 a 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 Certificate of Designation) of the Preferred Shares deposited with the
Depositary to be redeemed (including any accrued and unpaid dividends to the
date of redemption), the Depositary shall redeem the number of Depositary
Shares representing such Preferred Shares so called for redemption by the
Company and from and after the cash redemption date (unless the Company shall
have failed to redeem the Preferred Shares to be redeemed by it as set forth
in the Company's notice provided for in the preceding paragraph) all
dividends in respect of the Preferred Shares 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, if the Depositary shall so require), such
Depositary Shares shall be redeemed at a cash redemption price of $50.00 per
Depositary Share plus 1/10 of any other money and other property payable in
respect of such Preferred Shares. The foregoing shall be further subject to
the terms and conditions of the Certificate of Designation.
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 2.4 Registration of Transfer 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 2.5 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 2.6 Surrender of Receipts and Withdrawal of Preferred
Shares. Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares 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, provided that a holder of a Receipt or
Receipts may not withdraw such Preferred Shares (or money and other property,
if any, represented thereby) which has previously been called for redemption.
After such surrender, without unreasonable delay, the 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 Shares 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 Preferred Shares will
not thereafter be entitled to deposit such Preferred Shares 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 Shares to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional Preferred Shares and such
money and other property, if any, to be withdrawn, deliver to such holder, or
(subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Shares
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 deemed appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Shares 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 Shares, 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 or withdrawal of such
Preferred Shares 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 Shares 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 2.7 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 Shares 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 Shares, the Depositary Shares or the Receipts
may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares 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 shareholders 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 provisions of this Deposit Agreement.
SECTION 2.8 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 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 2.9 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.
SECTION 2.10 Preferred Shares and Depositary Shares Constituting
Excess Shares. For all purposes of Section 8.3 of the Company's Declaration
of Trust, the holders of Depositary Receipts evidencing Depositary Shares
shall be deemed to own that number and value of the Preferred Shares
represented by the Depositary Shares evidenced by such Receipts, and the
provisions of such Section 8.3 shall apply to such holders, Depositary
Receipts and Depositary Shares as if (i) the holder owned Preferred Shares,
(ii) the Depositary Receipts evidenced Preferred Shares, and (iii) the
Depositary Shares were Preferred Shares, mutatis mutandis. The Depositary
and the Company will cooperate in good faith to carry out the terms of this
Section 2.10, subject to the other terms and provisions of this Deposit
Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Preferred Shares 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 Shares represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
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 3.2 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 5.7, 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 Shares or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, and any part or all of the Preferred
Shares 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 dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 Representations and Warranties as to Preferred
Shares. In the case of the initial deposit of the Preferred Shares
hereunder, the Company and, in the case of subsequent deposits thereof, each
person so depositing Preferred Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Preferred Shares 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 Shares, when issued, will be validly issued, fully paid
and nonassessable. Such representations and warranties shall survive the
deposit of the Preferred Shares and the issuance of Receipts.
SECTION 3.4 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 deposited Preferred Share. Such representation
and warranty shall survive the deposit of the Preferred Shares and the
issuance of Receipts evidencing the Depositary Shares.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the deposited
Preferred Shares, including any cash received upon redemption of any
Preferred Shares pursuant to Section 2.3, the Depositary shall, subject to
Section 3.2, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of such sums 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 dividend or other cash distribution in respect of the Preferred
Shares 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 4.2 Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the deposited
Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4
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
3.2, be distributed or made available for distribution, as the case may be,
by the Depositary to record holders of Receipts as provided by Section 4.1 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 4.3 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 Shares are 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
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 3.1 and Section 3.2,
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.1 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, preference 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 4.4 Notice of Dividends; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other 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 Shares, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of such Preferred Shares are
entitled to vote or of which holders of such Preferred Shares are entitled to
notice or (ii) any election on the part of the Company to redeem any such
Preferred Shares, 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 Shares) for the determination of the holders of
Receipts who shall be entitled to receive such dividend, 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 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of deposited Preferred Shares 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 4.4 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 Shares 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 a Receipt on such record
date, the Depositary shall vote or cause to be voted the amount of Preferred
Shares represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent
such instructions request the voting of a fractional interest of a share of
deposited Preferred Shares, 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 Preferred Share is entitled to 10 votes and, accordingly, each
Depositary 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 Shares or cause such
Preferred Shares 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 Shares represented by the Depositary Shares evidenced
by such Receipt. The Depositary shall not be required to exercise discretion
in voting any Preferred Shares represented by the Depositary Shares evidenced
by such Receipt.
SECTION 4.6 Changes Affecting Preferred Shares and
Reclassifications, Recapitalization, etc. Upon any change in the liquidation
preference or upon any split-up, combination or any other reclassification of
Preferred Shares, or upon any recapitalization, reorganization, merger 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 Preferred Share and
(b) the ratio of the redemption price per Depositary Share to the redemption
price of a Preferred Share, in each case as may be required to fully reflect
the effects of such change in liquidation preference, split-up, combination
of other reclassification of Preferred Shares, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares 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 Shares 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 Shares. 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 the liquidation
preference, split-up, combination or other reclassification of the Preferred
Shares or any such recapitalization, reorganization, merger or consolidation
or sale of all or substantially all the assets of the Company, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Preferred Shares represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property
and cash into which the deposited Preferred Shares evidenced by such Receipts
might have been converted or for which such Preferred Shares 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
governing instrument of the resulting or surviving business entity (if other
than the Company) for protection of such rights as may be applicable upon
exchange of the deposited Preferred Shares for securities or property or cash
or the surviving business entity in connection with the transactions set
forth above. The Company shall cause any such surviving business entity (if
other than the Company) expressly to assume the obligations of the Company
hereunder.
SECTION 4.7 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
Shares and made generally available to the holders of the Preferred Shares.
In addition, the Depositary shall transmit certain notices and reports to the
holders of Receipts as provided in Section 5.5.
SECTION 4.8 List of Holders of Receipts. 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 4.9 Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of Internal Revenue Service
Forms 1099 for all open and closed accounts, (ii) foreign tax withholding,
(iii) back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid to eligible holders of Receipts, (iv)
mailing Internal Revenue Service Forms W-9 to new holders of Receipts without
a certified taxpayer identification number, (v) processing certified Internal
Revenue Service Forms W-9, (vi) preparation and filing of state information
returns and (vii) escheatment services.
SECTION 4.10 Withholding. Notwithstanding any other provisions
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 5.1 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 Shares 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 Shares, 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 Shares represented by such Depositary Shares shall be listed in the
New York Stock Exchange, Inc. on 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 Shares 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 Shares as may be required by law or applicable stock exchange
regulations.
SECTION 5.2 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 Declaration of Trust or the Certificate
of Designation 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 Registrar 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 5.3 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 (in the case of any action or
inaction with respect to the voting of the deposited Preferred Shares), 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
Shares, 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 Shares 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 5.6 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 Shares 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 Shares; 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.
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 Shares, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to herein or therein,
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 Depositary Shares in
accordance with the applicable securities laws.
SECTION 5.4 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 Shares 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 5.5 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 Shares, the
Depositary Shares or the Receipts are included for quotation or listed or by
the Declaration of Trust and the Certificate of Designation to be furnished
by the Company to holders of the deposited Preferred Shares and, if requested
by the holder of any Receipt, a copy of this Deposit Agreement, the form of
Receipt, the Certificate of Designation and the form of Preferred Shares.
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 5.6 Indemnification by the Company. The Company agrees
to indemnify the Depositary, and 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 any action or inaction with respect to the voting of the
deposited Preferred Shares) or bad faith on the part of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
SECTION 5.7 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 5.7. 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 Shares and the initial issuance of the Depositary Shares evidenced
by the Receipts, and redemption of the Preferred Shares at the option of the
Company and all withdrawals of the Preferred Shares 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 6.1 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 Shares
pursuant to the Certificate of Designation 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 2.6 and Section 2.7
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 Shares 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 6.2 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 the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor provisions) or (ii) the holders of two-
thirds of the Preferred Shares consents 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 Shares 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 Shares 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
2.3 or (ii) there shall have been made a final distribution in respect of the
deposited Preferred Shares 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.
This Deposit Agreement may also be terminated by the Company upon
not less than 30 days' prior written notice to the Depositary if the Company,
in its sole discretion, causes (i) a stock split of the Preferred Shares so
that each holder of Depositary Receipts evidencing Depositary Shares would be
able to own that number of Preferred Shares equal to the number of Depositary
Shares owned by each such holder immediately prior to such stock split, (ii)
each Depositary Share to represent one Preferred Share and to no longer
represent 1/10 of a Preferred Share and (iii) Preferred Shares to be issued
in exchange for all of the then outstanding Depositary Shares on a one-for-
one basis. In such event, Section 4.6 shall not apply.
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 5.6 and Section 5.7 and, if applicable, its obligation to
implement the issuance of Preferred Shares described in clause (iii) of the
immediately preceding paragraph.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 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 7.2 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 7.3 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 7.4 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 certified
mail, return receipt requested, addressed to the Company at:
NEW PLAN REALTY TRUST
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein
Telephone No.: (212) 869-3000
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 certified mail, return receipt requested,
addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of 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 certified mail, return receipt
requested, 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 certified mail, return receipt
requested, shall be deemed to be effected at the time when a duly addressed
letter containing the same is deposited, postage prepaid, in a post office
letter box.
SECTION 7.5 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 7.6 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 7.7 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 Massachusetts applicable to agreements made and to be performed
in said State.
SECTION 7.8 Inspection of Deposit Agreement and Certificate of
Designation. Copies of this Deposit Agreement and the Certificate of
Designation 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 7.9 Headings. The headings of articles and sections in
this Deposit Agreement and in the from 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.
SECTION 7.10 Limited Recourse Obligations. This Deposit
Agreement and all documents, agreements, understandings and arrangements
relating to this agreement have been negotiated, executed and delivered on
behalf of the Company by the trustees or officers thereof in their
representative capacity under the Declaration of Trust, and not individually,
and bind only the trust estate of the Company, and no trustee, officer,
employee, agent or shareholder of the Company shall be bound or held to any
personal liability or responsibility in connection with the agreements,
obligations and undertakings of the Company hereunder, and any person or
entity dealing with the Company in connection therewith shall look only to
the trust estate for the payment of any claim or for the performance of any
agreement, obligation or undertaking thereunder. The Depositary and all
holders of Receipts issued from time to time hereunder hereby acknowledge and
agree that each agreement and other document executed by the Company in
accordance with or in respect of this transaction shall be deemed and treated
to include in all respects and for all purposes the foregoing exculpatory
provision.
IN WITNESS WHEREOF, New Plan Realty Trust 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.
NEW PLAN REALTY TRUST
By:/s/ Dean Bernstein
________________________________
Attest: Authorized Officer
BANKBOSTON N.A.
By:/s/ Michael J. Lapolla
________________________________
Attest: Authorized Signatory
Exhibit A
[FORM OF FACE OF RECEIPT]
The Depositary Shares evidenced by this Depositary Receipt are subject
to redemption at any time at the option of the Trust on or after June 15,
2007 at a redemption price of $50.00 per Depositary Share, plus accrued and
unpaid dividends, if any, thereon. If necessary, in the opinion of the
Trustees of the Trust, to effect compliance by the Trust with certain
requirements of the Internal Revenue Code, the Shares evidenced by this
Depositary Receipt are subject to redemption by the Trust and the transfer
thereof may be prohibited upon the terms and conditions set forth in the
Deposit Agreement (as defined below), the Amended and Restated Declaration of
Trust and the Certificate of Designation Supplementing the Amended and
Restated Declaration of Trust for the 7.80% Series A Cumulative Step-Up
Premium Rate Preferred Shares, $1.00 par value per share. In addition,
ownership by any person of more than 7.5% in number or value of all of the
Trust's Shares, including the Depositary Shares represented by this
Depositary Receipt is restricted as set forth in said documents. The Trust
will furnish a copy of such terms and conditions to the registered holder of
this Receipt upon request and without charge. The Amended and Restated
Declaration of Trust provides that obligations thereunder are not personally
binding upon the Trustees and that no Trustee, shareholder, officer, employee
or agent of the Trust shall be held to any personal liability nor shall
resort be had to the private property of any Trustee, shareholder, officer,
employee or agent of the Trust.
DR ___
CUSIP 648059 30 1
CERTIFICATE FOR NOT MORE THAN 1,500,000 DEPOSITARY SHARES
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A 7.80% SERIES A CUMULATIVE STEP-UP PREMIUM RATE
PREFERRED SHARE (PAR VALUE $1.00 PER SHARE)
(LIQUIDATION PREFERENCE EQUIVALENT TO $50.00 PER
DEPOSITARY SHARE) OF
NEW PLAN REALTY TRUST
(a Massachusetts business trust)
BankBoston N.A., as Depositary (the "Depositary"), hereby certifies that
______________________ is the registered owner of ________________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing a 1/10
fractional interest in a 7.80% Series A Cumulative Step-Up Premium Rate
Preferred Share, $1.00 par value per share, of New Plan Realty Trust, a
Massachusetts business trust (the "Company"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of July 3, 1997 (the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of Receipts for Depositary
Shares. By accepting this Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or entitled to
any benefits under the Deposit Agreement unless it shall have been executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
Countersigned: ___________________________________
By:________________________________ By:________________________________
Authorized Signatory
[FORM OF REVERSE OF RECEIPT]
NEW PLAN REALTY TRUST
NEW PLAN REALTY TRUST WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE CERTIFICATE OF DESIGNATION WITH RESPECT TO THE 7.80% SERIES
A CUMULATIVE STEP-UP PREMIUM RATE PREFERRED SHARES OF NEW PLAN REALTY TRUST.
ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF
THIS RECEIPT.
________________________________
The following abbreviations, when used in the inscription on the face of
this certificate, 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)
Additional abbreviations may also be used though not in the above list.
For Value received, __________________ hereby sell(s), assign(s) and
transfer(s) unto
ASSIGNMENT
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 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 in the premises.
Dated, ________________
_________________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the certificate
in every particular, without alteration or enlargement or
any change whatever.