<PAGE> 1
As filed with the Securities and Exchange Commission on January 14, 1998.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): JANUARY 14, 1998
EXCEL REALTY TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 1-12244 33-0160389
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
16955 VIA DEL CAMPO, SUITE 100
SAN DIEGO, CALIFORNIA 92127
(Address of Principal Executive Offices) (Zip Code)
(619) 485-9400
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
===============================================================================
<PAGE> 2
This Current Report on Form 8-K is filed by Excel Realty Trust, Inc., a
Maryland corporation, in connection with the matters described herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The exhibits listed in the following index relate to the Registration
Statement (No. 333-24615) on Form S-3, as amended, of the Registrant and is
filed herewith for incorporation by reference in such Registration Statement.
(c) Exhibits.
1.01 Underwriting Agreement dated January 8, 1998 between Excel
Realty Trust, Inc. and Smith Barney Inc.
1.02 Terms Agreement dated January 8, 1998 between Excel Realty
Trust, Inc., Smith Barney Inc., A.G. Edwards & Sons, Inc.,
Morgan Stanley & Co. Incorporated, Paine Webber
Incorporated, and Prudential Securities Incorporated
4.01 Articles Supplementary filed with the Secretary of State of
the State of Maryland on January 12, 1998
4.02 Deposit Agreement dated January 13, 1998 between Excel
Realty Trust, Inc. and BankBoston, N.A., as Depositary, and
all holders from time to time of the Depositary Receipts
4.03 Form of Depositary Receipt
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: January 14, 1998 EXCEL REALTY TRUST, INC.
By: /s/ RICHARD B. MUIR
----------------------------
Richard B. Muir
Executive Vice President
and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<C> <S> <C>
1.01 Underwriting Agreement dated January 8, 1998 between Excel Realty
Trust, Inc. and Smith Barney Inc.
1.02 Terms Agreement dated January 8, 1998 between Excel Realty Trust,
Inc., Smith Barney Inc., A.G. Edwards & Sons, Inc., Morgan
Stanley & Co. Incorporated, Paine Webber Incorporated, and
Prudential Securities Incorporated
4.01 Articles Supplementary filed with the Secretary of State of the
State of Maryland on January 12, 1998
4.02 Deposit Agreement dated January 13, 1998 between Excel Realty
Trust, Inc. and BankBoston, N.A., as Depositary, and all holders
from time to time of the Depositary Receipts
4.03 Form of Depositary Receipt
</TABLE>
<PAGE> 1
EXHIBIT 1.01
EXCEL REALTY TRUST, INC.
UNDERWRITING AGREEMENT
<PAGE> 2
TABLE OF CONTENTS
UNDERWRITING AGREEMENT.................................... 1
SECTION 1. Representations and Warranties...... 4
(a) Representations and Warranties by the
Company................................ 4
(1) Compliance with Registration
Requirements........................ 4
(2) Incorporated Documents................ 5
(3) Independent Accountants............... 5
(4) Financial Statements.................. 5
(5) Pro Forma Financial Statements........ 6
(6) No Material Adverse Change in
Business............................ 6
(7) Good Standing of the Company.......... 7
(8) Good Standing of Subsidiaries......... 7
(9) Agreements............................ 7
(10) Capitalization....................... 8
(11) Authorization of this Underwriting
Agreement and Terms Agreement by
the Company........................ 8
(12) Authorization of Underwritten
Securities......................... 8
(13) Authorization of Warrants............ 8
(14) Authorization of Underlying
Securities Issuable Upon
Conversion......................... 9
(15) Authorization of Warrant and
Deposit Agreements................. 9
(16) Depositary Receipts.................. 9
(17) Authorization of Senior Debt
Securities and/or Subordinated
Debt Securities.................... 9
(18) Authorization of the Indenture....... 10
(19) Absence of Defaults and Conflicts.... 10
(20) REIT Qualification................... 11
(21) Absence of Proceedings............... 11
(22) Accuracy of Exhibits................. 11
(23) Absence of Further Requirements...... 11
(24) Possession of Intellectual Property.. 12
(25) Possession of Licenses and Permits... 12
(26) Registration Rights Agreements....... 12
(27) Title to Property.................... 12
(28) Internal Controls.................... 13
(29) Title Insurance...................... 13
(30) Investment Company Act............... 14
(31) Environmental Laws................... 14
(b) Officers' Certificates................... 14
SECTION 2. Sale and Delivery to Underwriters;
Closing........................... 14
2
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(a) Underwritten Securities.................. 14
(b) Option Underwritten Securities........... 14
(c) Payment.................................. 15
(d) Denominations; Registration.............. 16
SECTION 3. Covenants of the Company............ 16
SECTION 4. Payment of Expenses................. 19
(a) Expenses................................. 19
(b) Termination of Agreement................. 20
SECTION 5. Conditions of Underwriters'
Obligations....................... 20
(a) Effectiveness of Registration Statement.. 20
(b) Opinion of Counsel for the Company....... 21
(c) Opinion of Special Maryland Counsel for
the Company............................ 21
(d) Opinion of General Counsel of the
Company................................ 21
(e) Opinion of Counsel for Underwriters...... 21
(g) Officers' Certificate.................... 22
(h) Accountant's Comfort Letter.............. 22
(i) Bring-down Comfort Letter................ 22
(j) Comfort Letter for Acquisitions.......... 23
(k) Ratings.................................. 23
(l) Approval of Listing....................... 23
(m) No Objection.............................. 23
(n) Lock-up Agreements........................ 23
(o) Over-Allotment Option.................... 24
(p) Additional Documents..................... 25
(q) Termination of Terms Agreement........... 25
SECTION 6. Indemnification..................... 25
(a) Indemnification of Underwriters.......... 25
(b) Indemnification of Company, Directors
and Officers........................... 27
(c) Actions against Parties; Notification.... 27
(d) Settlement without Consent if Failure
to Reimburse........................... 27
SECTION 7. Contribution........................ 28
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery.... 29
SECTION 9. Termination......................... 29
(a) Underwriting Agreement................... 29
(b) Terms Agreement.......................... 29
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(c) Liabilities.............................. 30
SECTION 10. Default by One or More of the
Underwriters..................... 30
SECTION 11. Notices............................ 31
SECTION 12. Parties............................ 31
SECTION 13. GOVERNING LAW AND TIME............. 32
SECTION 14. Effect of Headings................. 32
SECTION 15. Counterparts....................... 32
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EXCEL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock,
Preferred Stock, Depositary Shares, Warrants
and
Debt Securities
UNDERWRITING AGREEMENT
January 8, 1998
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Excel Realty Trust, Inc., a Maryland corporation (the "Company") proposes
to issue and sell up to $500,000,000 aggregate initial public offering price of
its shares of common stock, par value $.01 per share (the "Common Stock"), or
warrants to purchase a number of shares of Common Stock (the "Common Stock
Warrants"), or both, or shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), or warrants to purchase a number of shares of Preferred
Stock (the "Preferred Stock Warrants"), or both, or interests in Preferred Stock
in the form of depositary shares (the "Depositary Shares") represented by
depositary receipts (the "Depositary Receipts"), or warrants to purchase a
number of Depositary Shares (the "Depositary Share Warrants"), or both, or
senior or subordinated debt securities (the "Debt Securities"), or warrants to
purchase an amount of Debt Securities (the "Debt Security Warrants"), or both,
or any combination thereof, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale.
The Common Stock Warrants, Preferred Stock Warrants, Depositary Share
Warrants and Debt Security Warrants (collectively, the "Warrants") will be
issued pursuant to one or more Warrant Agreements (each a "Warrant Agreement")
between the Company and a warrant agent specified therein (the "Warrant Agent").
<PAGE> 6
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable Articles Supplementary (each, an "Articles Supplementary") relating
to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of May
8, 1995, as supplemented as of April 4, 1997 and July 3, 1997 (the "Senior
Indenture"), between the Company and State Street Bank and Trust Company of
California, N.A., as trustee (the "Senior Trustee"), or as subordinated
indebtedness (the "Subordinated Debt Securities") under an indenture, dated as
of o (the "Subordinated Indenture", and collectively with the Senior Indenture,
the "Indentures", and each, an "Indenture"), between the Company and o, as
trustee (the "Subordinated Trustee", and collectively with the Senior Trustee,
the "Trustees", and each, a "Trustee"). Each series of Debt Securities may vary,
as applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities) and any other variable terms
established by or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares,
Depositary Share Warrants, Depositary Receipts, Senior Debt Securities,
Subordinated Debt Securities, or Debt Security Warrants, or any combination
thereof, initially issuable by the Company; "Warrant Securities" shall mean the
Common Stock, Preferred Stock, Depositary Shares or Debt Securities issuable
upon exercise of the Warrants; and "Underlying Securities" shall mean the Common
Stock, Preferred Stock, Senior Debt Securities or Subordinated Debt Securities
issuable upon conversion of the Preferred Stock, Senior Debt Securities or
Subordinated Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities through
Smith Barney Inc. ("Smith Barney"), or through an underwriting syndicate managed
by Smith Barney, the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, Smith Barney and such other underwriters, if any, selected
by Smith Barney (the "Underwriters", which term shall include Smith Barney,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), including the number of
Warrants, if any, whether the Initial Underwritten Securities shall be in the
form of Depositary Shares and the fractional amount of shares of
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<PAGE> 7
Preferred Stock represented by each Depositary Share, the name of each
Underwriter participating in such offering (subject to substitution as provided
in Section 10 hereof) and the name of any Underwriter other than Smith Barney
acting as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Initial Underwritten Securities and any other material variable
terms of the Initial Underwritten Securities, as well as the material variable
terms of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number or aggregate principal amount, as the
case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and Smith Barney, acting
for itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through Smith Barney as sole Underwriter or
through an underwriting syndicate managed by Smith Barney will be governed by
this Underwriting Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-24615) and amendment
no. 1 thereto for the registration of the Securities and the Underlying
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company has filed such amendments thereto as may be
required prior to the execution of the applicable Terms Agreement. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission and each Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations").
Such registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Underwritten Securities, are collectively referred to herein
as the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior
3
<PAGE> 8
to the execution of the applicable Terms Agreement; provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement; and provided, further,
that if the Company elects to rely upon Rule 434 of the 1933 Act Regulations,
then all references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the registration
statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable Terms
Agreement. For purposes of this Underwriting Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to Smith Barney, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Registration
Statement and the Prospectus, at the time the Registration Statement
became effective and at each time thereafter on which the Company filed an
Annual Report on Form 10-K with the
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<PAGE> 9
Commission, complied, and as of each Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations; the Registration Statement, at the time the Registration
Statement became effective and at each time thereafter on which the
Company filed an Annual Report on From 10-K with the Commission, did not,
and at each time thereafter on which any amendment to the Registration
Statement becomes effective or the Company files an Annual Report on Form
10-K with the Commission and as of each Representation Date, and at the
Closing Time (as defined herein), will not, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
the Prospectus, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by any Underwriter through Smith Barney expressly for use in the
Registration Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Prospectus (the "Incorporated
Documents"), at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date or Closing Time (as defined herein) or during the
period specified in Section 3(f) hereof, did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K promulgated
by the Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304.
(4) Financial Statements. The historical financial statements of the
Company included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries, as at the dates indicated and
the results of operations for the periods specified; except as
5
<PAGE> 10
otherwise stated in the Registration Statement and the Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and comply
with the applicable accounting requirements of the 1933 Act (including,
without limitation, Rule 3-14 of Regulation S-X promulgated by the
Commission), and all adjustments necessary for a fair presentation of the
results for such periods have been made; the supporting schedules included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated therein;
and the selected financial data (both historical and pro forma) included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the related financial statements
presented therein. The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the revenue and
those operating expenses included in such summaries of the properties
related thereto for the periods specified in conformity with generally
accepted accounting principles.
(5) Pro Forma Financial Statements. The pro forma consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro forma
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of operations for the periods
specified; and such pro forma financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with the audited financial statements of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared,
and the pro forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(6) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries other than those in
the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C) except
for regular monthly or quarterly dividends on the Company's Common Stock
or dividends declared, paid or made in accordance
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<PAGE> 11
with the terms of any series of the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(7) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland, with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Terms Agreement; the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and the Articles Supplementary relating to the Preferred Stock
or Depositary Shares, if applicable, will be in full force and effect as
of each Representation Date.
(8) Good Standing of Subsidiaries. Each subsidiary (which term, as
used in this Agreement, includes corporations, limited and general
partnerships, joint ventures and other entities) of the Company has been
duly organized and is validly existing and in good standing under the laws
of the jurisdiction of its organization, has power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; except as otherwise stated in the Prospectus, all of the
issued and outstanding capital stock of or other ownership interests in
each such subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for security interests
granted in respect of indebtedness of the Company or any of its
subsidiaries and described in the Prospectus.
(9) Agreements. Each of the partnership and joint venture agreements
to which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been duly
authorized, executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors or (b)
the effect of general principles of
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<PAGE> 12
equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor
may be brought; and the execution, delivery and performance of any of such
agreements by the Company or its subsidiaries, as applicable, did not, at
the time of execution and delivery, and does not constitute a breach of,
or default under, the charter or by-laws (or other organizational
documents) of such party or any material contract, lease or other
instrument to which such party is a party or by which its properties may
be bound or any law, administrative regulation or administrative or court
decree.
(10) Capitalization. The authorized, issued and outstanding capital
stock of the Company is in all material respects as set forth in the
Prospectus under "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, employee and director stock option plans, or
upon the exercise of options, warrants or convertible debt securities
referred to in the Prospectus); and such shares of capital stock have been
duly authorized and validly issued and are fully paid and non-assessable
and are not subject to preemptive or other similar rights.
(11) Authorization of this Underwriting Agreement and Terms Agreement
by the Company. The Company has full corporate, power and authority to
enter into this Agreement and the applicable Terms Agreement, and this
Agreement has been, and as of each Representation Date, the applicable
Terms Agreement, will have been, duly authorized, executed and delivered
by the Company.
(12) Authorization of Underwritten Securities. The Underwritten
Securities being sold pursuant to this Agreement and the applicable Terms
Agreement and, if applicable, the deposit of the shares of Preferred Stock
in accordance with the provisions of a Deposit Agreement (each, a "Deposit
Agreement"), among the Company, the financial institution specified
therein (the "Depositary") and the holders of the Depositary Receipts
issued thereunder, have, as of each Representation Date, been duly
authorized by the Company and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement and such Terms
Agreement and such Underwritten Securities, when issued and delivered by
the Company pursuant to this Agreement against payment of the
consideration set forth in such Terms Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive or other similar rights; the
shares of Preferred Stock, if applicable, conform to the provisions of the
Articles Supplementary; and the Underwritten Securities and each
applicable Indenture and any Underlying Securities being sold pursuant to
the applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus.
(13) Authorization of Warrants. If applicable, the Warrants have been
duly authorized and, when issued and delivered pursuant to this Agreement
and the
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<PAGE> 13
applicable Terms Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Warrant Agreement under which they are to be issued; and the issuance
of the Warrant Securities upon exercise of the Warrants will not be
subject to preemptive or other similar rights; and the Warrants conform in
all material respects to all statements relating thereto contained in the
Prospectus.
(14) Authorization of Underlying Securities Issuable Upon Conversion.
If applicable, the Underlying Securities issuable upon conversion of any
of the shares of Preferred Stock or the Depositary Shares, or the exercise
of the Warrant Securities, or the conversion of any Debt Securities, will
have been duly and validly authorized and reserved for issuance upon such
conversion or exercise of the Warrants, as the case may be, by all
necessary corporate action and such Underlying Securities, when issued
upon such conversion or exercise, will be duly authorized and validly
issued and will be fully paid and non-assessable, and the issuance of such
Underlying Securities upon such conversion or exercise will not be subject
to preemptive or other similar rights; the Underlying Securities issuable
upon conversion of any of the shares of Preferred Stock or the Depositary
Shares, or the exercise of the Warrant Securities, or the conversion of
any Debt Securities, conform in all material respects to all statements
relating thereto contained in the Prospectus.
(15) Authorization of Warrant and Deposit Agreements. The applicable
Warrant Agreement, if any, and the applicable Deposit Agreement, if any,
will have been duly authorized, executed and delivered by the Company
prior to the issuance of the related Underwritten Securities, and each
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating to
or affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law); and the Warrant Agreement, if any, and the Deposit Agreement,
if any, each conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(16) Depositary Receipts. If applicable, upon execution and delivery
of the Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered will be
entitled to the rights specified therein and in the Deposit Agreement,
except as enforcement of such rights may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors'
rights generally and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(17) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement
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include Senior Debt Securities and/or Subordinated Debt Securities, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment of
the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the
form contemplated by, and each registered holder thereof is entitled to
the benefits of, the applicable Indenture.
(18) Authorization of the Indenture. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is
convertible into Debt Securities, each applicable Indenture has been, or
prior to the issuance of the Debt Securities thereunder will have been,
duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(19) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws (or, in the
case of subsidiaries which are not corporations, other organizational
documents) or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for any such
violation or default that would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its
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<PAGE> 15
subsidiaries considered as one enterprise; and the execution, delivery and
performance of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable Deposit Agreement,
if any, and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action,
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the charter or
by-laws of the Company or any applicable law, administrative regulation or
administrative or court decree.
(20) REIT Qualification. The Company has operated and intends to
continue to operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), for the taxable year in which sales of the
Underwritten Securities are to occur.
(21) Absence of Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries which is
required to be disclosed in the Prospectus (other than as disclosed
therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties
or assets thereof or which might materially and adversely affect the
consummation of this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement, if any, or the applicable Deposit Agreement,
if any, or the transactions contemplated herein or therein; all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(22) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
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<PAGE> 16
(23) Absence of Further Requirements. No authorization, approval,
permit or consent of any court or governmental authority or agency is
necessary in connection with the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement, except such as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities or real estate syndication laws.
(24) Possession of Intellectual Property. The Company and its
subsidiaries own or possess any trademarks, service marks, trade names or
copyrights required in order to conduct their respective businesses as
described in the Prospectus, other than those the failure to possess or
own would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(25) Possession of Licenses and Permits. The Company and its
subsidiaries possess such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses as described in the
Prospectus, other than those the failure to possess or own would not have
a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(26) Registration Rights Agreements. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement.
(27) Title to Property. Except as otherwise disclosed in the
Prospectus and except as would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise: (a) the Company and its subsidiaries have good and marketable
title in fee simple to all real property and improvements described in the
Prospectus and, at the Closing Time, the Company and its subsidiaries will
have good and marketable title in fee simple to all real property and
improvements as described in the Prospectus; (b) all liens, charges,
encumbrances, claims or restrictions on or affecting the real property and
improvements owned by the Company or any of its subsidiaries which are
required to be disclosed in the Prospectus are disclosed therein; (c)
neither the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any lessee of any portion of the real property or
improvements owned by the
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<PAGE> 17
Company or any of its subsidiaries is in default under any of the leases
pursuant to which the Company or any of its subsidiaries leases such real
property or improvements, and the Company knows of no event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except such defaults that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; (d) no tenant under any of the leases pursuant to which the
Company or any of its subsidiaries leases any of its real property or
improvements has an option or right of first refusal to purchase the
premises demised under such lease, except that a tenant of the Galleria in
Scottsdale, Arizona holds a right of first refusal to purchase such
property; (e) all the real property and improvements owned by the Company
and its subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and (f) the Company has no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property or improvements
owned by the Company or any of its subsidiaries, except such proceedings
or actions that would not, individually or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(28) Internal Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general or
specific authorizations; (b) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(c) access to assets is permitted only in accordance with management's
general or specific authorization; and (d) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Neither the
Company nor any of its employees or agents has made any payment of funds
of the Company or received or retained any funds in violation of any law,
rule or regulation which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(29) Title Insurance. The Company and its subsidiaries have title
insurance on each of their respective properties, in each case in an
amount at least equal to (a) the cost of acquisition of such property or
(b) the cost of construction of the improvements located on such property
(measured at the time of such construction), except, in each case, where
the failure to maintain such title insurance would not have a material
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<PAGE> 18
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(30) Investment Company Act. Neither the Company nor any of its
subsidiaries is required to be registered under the Investment Company Act
of 1940, as amended (the "1940 Act").
(31) Environmental Laws. Except as otherwise disclosed in the
Prospectus, the Company has no knowledge of: (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the properties
owned by the Company or any of its subsidiaries, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or from any such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and in connection with the construction on or operation and
use of the properties owned by the Company or its subsidiaries, the
Company has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials that could have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company in such capacity and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or
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<PAGE> 19
aggregate principal amount, as the case may be, of the Option Underwritten
Securities set forth therein at a price per Option Underwritten Security equal
to the price per Initial Underwritten Security, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial Underwritten Securities but not payable on the Option Underwritten
Securities. Such option, if granted, will expire 30 days or such lesser number
of days as may be specified in the applicable Terms Agreement after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by Smith Barney
to the Company setting forth the number or aggregate principal amount, as the
case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
Smith Barney, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by Smith Barney and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total number or aggregate principal amount, as the
case may be, of Initial Underwritten Securities (except as otherwise provided in
the applicable Terms Agreement), subject to such adjustments as Smith Barney in
its discretion shall make to eliminate any sales or purchases of a fractional
number or aggregate principal amount, as the case may be, of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Brown & Wood
LLP, One World Trade Center, New York, New York 10048 or at such other place as
shall be agreed upon by Smith Barney and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by Smith Barney and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-mentioned
offices of Brown & Wood LLP or at such other place as shall be agreed upon by
Smith Barney and the Company, on the relevant Date of Delivery as specified in
the notice from Smith Barney to the Company.
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Smith Barney for the respective accounts of the Underwriters of the Underwritten
Securities to be purchased by them. It is understood that each Underwriter has
authorized Smith Barney, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Underwritten Securities which it
has severally agreed to purchase. Smith Barney, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities to be purchased by
any Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as Smith Barney may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by Smith Barney in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with Smith
Barney and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the offering and the
number of Underwritten Securities which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as Smith Barney and the Company deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company will, by the close of business in New York on the business day
immediately succeeding the date of the applicable Terms Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as Smith Barney shall reasonably request. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission the
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form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
applicable Terms Agreement.
(b) The Company will notify Smith Barney immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Underwritten Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will make every reasonable effort to
prevent the issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give Smith Barney notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, (including any revised Prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will furnish Smith Barney with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which Smith Barney or
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes
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<PAGE> 22
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1933
Act, the 1934 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as Smith Barney may designate; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified. In each
jurisdiction in which the Underwritten Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities; provided, however,
that the Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company will
make generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
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(j) The Company will use the net proceeds received by it from the sale of
the Underwritten Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(k) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will not, during a period of 90 days from the date of the
applicable Terms Agreement, with respect to the Underwritten Securities covered
thereby, without Smith Barney's prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Securities of the same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten Securities which are to be
sold pursuant to such Terms Agreement) or, if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock, any Common Stock
or any security convertible into Common Stock (except for Common Stock issued
pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans or as partial or
full payment for properties acquired or to be acquired by the Company), except
as may be otherwise provided in the applicable Terms Agreement.
(m) If the shares of Preferred Stock or Depositary Shares are convertible
into shares of Common Stock or if Warrants are issued, the Company will reserve
and keep available at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock or Preferred Stock, as the case may
be, for the purpose of enabling the Company to satisfy any obligations to issue
such shares upon conversion of the shares of Preferred Stock or the Depositary
Shares, as the case may be, or upon exercise of the Warrants.
(n) If applicable, the Company will use its best efforts to list the
Initial Underwritten Securities or the Underlying Securities on the New York
Stock Exchange or such other national exchange on which the Company's Initial
Underwritten Securities are then listed.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Underwriting
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities or any
related Underlying Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any
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related Underlying Securities, any certificates for the Underwritten Securities
or such Underlying Securities, to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and their respective counsel, (v) the
qualification of the Underwritten Securities, the Warrant Securities and any
related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) the printing and delivery to the Underwriters of copies of the
applicable Deposit Agreement, if any, and the applicable Warrant Agreement, if
any, (viii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (ix) the fees and expenses incurred with
respect to the listing of the Warrant Securities, the Underwritten Securities
and any related Underlying Securities, if applicable, and (x) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Smith Barney in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall
have been filed with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5),
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as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for the Company. At Closing Time, Smith Barney
shall have received the favorable opinion, dated as of Closing Time, of
Latham & Watkins, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to
the effect set forth in Exhibit B hereto.
(c) Opinion of Special Maryland Counsel for the Company. At Closing
Time, Smith Barney shall have received the favorable opinion, dated as of
Closing Time, of Ballard Spahr Andrews & Ingersoll, special Maryland
counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit C
hereto.
(d) Opinion of General Counsel of the Company. At Closing Time, Smith
Barney shall have received the favorable opinion, dated as of Closing
Time, of S. Eric Ottesen, Esq., general counsel of the Company, in form
and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit D hereto.
(e) Opinion of Counsel for Underwriters. The favorable opinion, dated
as of Closing Time, of Brown & Wood LLP, counsel for the Underwriters with
respect to the matters requested by the Underwriters.
(f) In giving their opinions required by subsections (b), (d) and
(e), respectively, of this Section, Latham & Watkins, S. Eric Ottesen,
Esq. and Brown & Wood LLP shall each additionally state that nothing has
come to their attention that would lead them to believe that the
Registration Statement or any amendment thereto, (except for financial
statements, supporting schedules and other financial data, as to which
counsel need make no statement) at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form 10-K
has been filed by the Company with the Commission, subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing of
such Annual Report, as the case may be) or at the Representation Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, (except for financial statements,
supporting schedules and other financial data, as to
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<PAGE> 26
which such counsel need make no statement) at the Representation Date or
at Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. In giving their opinions required by
subsections (b), (c), (d) and (e), respectively, of this Section, Latham &
Watkins, Ballard Spahr Andrews & Ingersoll, S. Eric Ottesen, Esq. and
Brown & Wood LLP may rely, (1) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company, (2) with respect to certain other matters,
upon certificates of appropriate government officials in such
jurisdiction, and (3) Brown & Wood LLP may additionally rely, as to
matters involving the laws of the State of Maryland, upon the opinion of
Ballard Spahr Andrews & Ingersoll (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters.
(g) Officers' Certificate. At Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, from that set forth in the Prospectus; no
proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries before or by any
Federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially and adversely
affect the business, property, financial condition or income of the
Company and its subsidiaries considered as one enterprise, other than as
set forth in the Prospectus or incorporated therein by reference; and
Smith Barney shall have received a certificate of the President and Chief
Executive Officer and of the Chief Financial Officer of the Company in
such capacity, dated as of such Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though such Closing Time were a Representation Date, (iii) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted, are pending or, to the best of such officers' knowledge, are
threatened by the Commission. As used in this Section 5(g), the term
"Prospectus" means the Prospectus in the form first used to confirm sales
of the Underwritten Securities.
(h) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Smith Barney shall have received from Coopers
& Lybrand L.L.P. a letter dated such date, in form and substance
satisfactory to Smith Barney, together
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with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information as set forth in
Exhibit E.
(i) Bring-down Comfort Letter. At Closing Time, Smith Barney shall
have received from Coopers & Lybrand L.L.P. a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(j) Comfort Letter for Acquisitions. At the time of the execution of
the applicable Terms Agreement, Smith Barney shall have received a letter
dated such date from such independent accountants that have prepared
historical financial statements included in or incorporated by reference
into the Registration Statement and Prospectus which financial statements
relate to properties or assets acquired or to be acquired by the Company,
in form and substance reasonably satisfactory to the Underwriters, to the
effect that (i) they are independent accountants with respect to the
Company and such properties or assets within the meaning of the 1933 Act
and the 1933 Act Regulations; and (ii) it is their opinion that the
historical financial statements for such properties or assets that have
been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the
Prospectus comply in form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
(k) Ratings. At Closing Time and at any relevant Date of Delivery,
unless the Underwritten Securities being sold pursuant to the applicable
Terms Agreement relate solely to Common Stock, the Underwritten Securities
shall have the ratings accorded by any "nationally recognized statistical
rating organization", as defined by the Commission for purposes of Rule
436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to Smith
Barney a letter, dated as of such date, from each such rating
organization, or other evidence reasonably satisfactory to Smith Barney,
confirming that the Underwritten Securities have such ratings. Since the
time of execution of such Terms Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned to the Underwritten
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's other securities.
(l) Approval of Listing. At Closing Time, the Underwritten
Securities shall have been approved for listing, subject only to official
notice of issuance, if and as specified in the applicable Terms Agreement.
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(m) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(n) Lock-up Agreements. On the date of the applicable Terms
Agreement, Smith Barney shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such
Terms Agreement as being required to be delivered by the persons listed
therein.
(o) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or
any portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder
shall be true and correct as of each Date of Delivery, and, at the
relevant Date of Delivery, Smith Barney shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of
the Company on behalf of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(g) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance reasonably satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Sections 5(b) and 5(f) hereof.
(3) The favorable opinion of Ballard Spahr Andrews &
Ingersoll, special Maryland counsel for the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same extent as the opinion required
by Sections 5(c) and 5(f) hereof.
(4) The favorable opinion of S. Eric Ottesen, Esq., general
counsel of the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and
otherwise to the same extent as the opinion required by Sections
5(d) and 5(f) hereof.
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(5) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(e) and 5(f) hereof.
(6) A letter from Coopers & Lybrand L.L.P., in form and
substance satisfactory to Smith Barney and dated such Date of
Delivery, substantially the same in scope and substance as the
letter furnished to Smith Barney pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this Section 5(o)(6) shall be a date not more than three days prior
to such Date of Delivery.
(7) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of the
Company's other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Underwritten
Securities or any of the Company's other securities.
(p) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as
herein contemplated shall be satisfactory in form and substance to Smith
Barney and counsel for the Underwriters.
(q) Termination of Terms Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
Smith Barney by notice to the Company at any time at or prior to the
Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Smith Barney), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Smith Barney expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided
further, that with respect to any preliminary prospectus, such indemnity shall
not inure to the benefit of any
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Underwriter (or the benefit of any person controlling such Underwriter) if the
person asserting any such losses, liabilities, claims, damages or expense
purchased the Underwritten Securities which are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Underwritten Securities to such
person in any case where such sending or giving is required by the 1933 Act and
the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus and the Prospectus was
delivered to such Underwriter a reasonable amount of time prior to the date of
delivery of such confirmation.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Smith Barney expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Smith Barney, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7
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hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the
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parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
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SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Smith Barney upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. Smith Barney may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Smith Barney,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that, in the event of a termination pursuant to
Section 9(b), Sections 1, 6, 7 and 8 shall survive such termination and remain
in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Smith Barney shall have the
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right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, Smith Barney shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms Agreement bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters to
purchase, and the Company to sell, such Option Underwritten Securities on
such Date of Delivery) shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Smith Barney or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Smith Barney at 388 Greenwich Street, New
York, New York 10013, attention of Manager, Investment Banking Division; and
notices to the Company shall be directed to it at 16955 Via
31
<PAGE> 36
Del Campo, Suite 100, San Diego, California 92127, attention of Richard B. Muir,
Executive Vice President and Secretary.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
Smith Barney and, upon execution of such Terms Agreement, any other Underwriters
and their respective successors. Nothing expressed or mentioned in this
Underwriting Agreement or such Terms Agreement is intended or shall be construed
to give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart, the executed counterparts shall constitute a single
instrument.
32
<PAGE> 37
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between Smith Barney and the Company in accordance with its terms.
Very truly yours,
EXCEL REALTY TRUST, INC.
By: /s/ GARY B. SABIN
--------------------------------
Name: Gary B. Sabin
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
SMITH BARNEY INC.
By: /s/ MARK R. PATTERSON
--------------------------------
Name: Mark R. Patterson
Title: Authorized Signatory
33
<PAGE> 38
Exhibit A
EXCEL REALTY TRUST, INC.
(a Maryland Corporation)
TERMS AGREEMENT
To: Excel Realty Trust, Inc.
16955 Via Del Campo, Suite 100
San Diego, California 92127
Ladies and Gentlemen:
We understand that Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell [ shares of its common stock, par value
$.01 per share (the "Common Stock")] [ shares of its preferred stock, par value
$.01 per share (the "Preferred Stock")] [in the form of depositary shares (the
"Depositary Shares") each representing of a share of Preferred Stock] [$
aggregate principal amount of its [senior] [subordinated] debt securities (the
"Debt Securities")] [ warrants (the "Common Stock Warrants") to purchase common
stock, par value $.1 per share] [ warrants (the "Preferred Stock Warrants") to
purchase preferred stock, par value $.01 per share] [ warrants (the "Debt
Security Warrants") to purchase $ aggregate principal amount of [senior]
[subordinated] debt securities] ([such securities also being hereinafter
referred to as] the "[Initial] Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [[number] [principal] [amount] of] Underwritten Securities
[opposite their names set forth below] at the purchase price set forth below [,
and a proportionate share of Option Underwritten Securities set forth below, to
the extent any are purchased].
A-1
<PAGE> 39
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
----------------
Total [$]
===========
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
A-2
<PAGE> 40
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
A-3
<PAGE> 41
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: ___% of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from __________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No] Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants
issued with each [share of Common Stock] [share of Preferred Stock] [$
principal amount of Debt Securities]:
Date(sfrom which or period(s) during which [Common Stock] [Preferred Stock]
[Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security] Warrants
expire:
Exercise price(s):
Initial public offering price:
Purchase price:
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [Common
Stock] [Preferred Stock] [Debt Security] Warrant:
A-4
<PAGE> 42
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "EXCEL REALTY TRUST, INC.-- Common Stock, Preferred Stock, Depositary
Shares, Warrants and Debt Securities--Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
SMITH BARNEY INC.
By:
--------------------------------
Name:
Title: Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
EXCEL REALTY TRUST, INC.
By:
--------------------------------
Name:
Title:
A-5
<PAGE> 43
EXHIBIT B
FORM OF OPINION OF COMPANY'S
COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, have been duly executed and delivered by the
Company, and (assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement, and the Depositary, in
the case of the Deposit Agreement) each constitutes a valid and legally
binding agreement of the Company enforceable in accordance with its terms;
and the Warrant Agreement, if any, and the Deposit Agreement, if any, each
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(ii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in
whose names such Depositary Receipts are registered will be entitled to
the rights specified therein and in the Deposit Agreement, to the extent
such rights are governed by the laws of the State of New York.
(iii) Each of this Agreement and the applicable Terms Agreement has
been duly executed and delivered by the Company.
(iv) The Registration Statement is effective under the 1933 Act and,
to the best of their knowledge and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(v) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates, comply as to form in all material respects with
the requirements for registration statements on Form S-3 under the 1933
Act and the 1933 Act Regulations; if applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 under the 1933 Act Regulations;
it being understood, however, that no opinion need be rendered with
respect to the financial statements and notes thereto, schedules and other
financial and related statistical data included or incorporated by
reference in the Registration Statement or the Prospectus; and it being
understood, further, that in passing upon the compliance as to form of the
Registration Statement, the Prospectus and the Rule 434 Prospectus, if
applicable, such counsel may assume that the statements made therein are
correct and complete.
(vi) Each document filed pursuant to the 1934 Act (other than the
financial statements and notes thereto, schedules and other financial and
related statistical data
B-1
<PAGE> 44
included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the 1934
Act and the 1934 Act Regulations. In passing upon compliance as to form of
such documents, such counsel may assume that the statements made therein
are correct and complete.
(vii) No authorization, approval, permit or consent of any court or
governmental authority or agency is required that has not been obtained in
connection with the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Deposit Agreement, if any, or the applicable Warrant Agreement,
if any, except such as may be required under the 1933 Act and state
securities laws or real estate syndication laws.
(viii) Neither the Company nor any of its subsidiaries is required
to be registered under the 1940 Act.
(ix) The partnership agreements of EH Properties, L.P., a Delaware
limited partnership and Excel Realty Partners, L.P., a Delaware limited
partnership (the "Partnership Agreements") have been duly executed and
delivered by the Company and constitute the valid agreement thereof,
enforceable against the Company in accordance with their respective terms.
(x) Each of EH Properties, L.P., a Delaware limited partnership, and
Excel Realty Partners, L.P., a Delaware limited partnership, has been duly
organized and is validly existing and in good standing under the laws of
the State of Delaware, has partnership power and authority to own, lease
and operate its properties and to conduct its business substantially as
described in the Prospectus; except as otherwise stated in the Prospectus,
all of the issued and outstanding limited partnership interests in each
such limited partnership have been duly authorized and validly issued.
(xi) ERT Development Corporation, a Delaware corporation ("ERT"),
has been duly incorporated and is validly existing and in good standing
under the laws of the State of Delaware, has corporate power and authority
to own, lease and operate its properties and to conduct its business
substantially as described in the Prospectus; except as otherwise stated
in the Prospectus, all of the issued an outstanding shares of capital
stock of ERT have been duly authorized and validly issued and are fully
paid and are non-assessable.
(xii) Commencing not later than January 1, 1993, the Company has
been organized in conformity with the requirements for qualification as a
"real estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), and its method of operation will enable it to meet
the requirements for qualification and taxation as a "real estate
investment trust" under the Code, provided that such counsel's opinion as
to this
B-2
<PAGE> 45
matter may be conditioned upon certain representations as to factual
matters made by the Company to such counsel as described therein.
(xiii) The statements set forth (a) in the Prospectus under the
caption "Certain Federal Income Tax Considerations to the Company of its
REIT Election" and "Description of Debt Securities" and (b) if applicable,
in the Prospectus Supplement under the caption "Certain Federal Income Tax
Considerations to Holders of Common Stock" and "Description of Notes", to
the extent such statements constitute matters of law, summaries of legal
matters, or legal conclusions, have been reviewed by them and are accurate
in all material respects.
(xiv) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally, (B) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), (C)
requirements that a claim with respect to any debt securities issued under
the Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(xv) The Notes are in the form contemplated by the Indenture, have
been duly authorized by the Company for offer, sale, issuance and delivery
pursuant to this Agreement and, when executed by the Company and
authenticated by the Trustee in the manner provided for in the Indenture
(assuming the due authorization, execution and delivery of the Indenture
by the Trustee) and delivered against payment of the consideration
therefor as specified in the applicable Terms Agreement, will constitute
valid and legally binding obligations of the Company, entitling the
holders thereof to the benefits provided by the Indenture, enforceable
against the Company, in accordance with their terms, except as the
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, (B) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), (C) requirements that a claim with
respect to any Notes payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
B-3
<PAGE> 46
(xvi) The Indenture and the Notes, in the forms certified on the
date hereof, conform in all material respects to the statements relating
thereto contained in the Prospectus and are in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement.
B-4
<PAGE> 47
EXHIBIT C
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL
FOR THE COMPANY PURSUANT TO SECTION 5(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own, lease and operate its current
properties, to conduct its current business substantially as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the applicable Terms Agreement.
(iii) The authorized, issued and outstanding capital stock of the Company
is in all material respects as set forth in the Prospectus (as of the date set
forth therein) under "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans, or upon the
exercise of options, warrants or convertible debt securities referred to in the
Prospectus) and such shares of stock have been duly authorized and validly
issued and are fully paid and non-assessable.
(iv) The Underwritten Securities being sold pursuant to this Agreement and
the applicable Terms Agreement and, if applicable, the deposit of the shares of
Preferred Stock in accordance with the provisions of a Deposit Agreement, have
been duly and validly authorized by all necessary corporate action on the part
of the Company and such Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement and such Terms Agreement; and such
Underwritten Securities, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth in such Terms
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Underwritten Securities will not be subject to preemptive or
other similar rights arising under the Charter or Bylaws of the Company, or
under the Maryland General Corporation Law ("MGCL"); and the shares of Preferred
Stock, if applicable, conform to the provisions of the Articles Supplementary.
(v) If applicable, the Warrants have been duly authorized and, when issued
and delivered pursuant to this Agreement and the applicable Terms Agreement and
countersigned by the Warrant Agent as provided in the Warrant Agreement, will
have been duly executed, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Warrant Agreement under which they are to be issued, insofar as the Warrants
are governed by the MGCL and assuming the validity and enforceability of such
Warrant Agreement.
C-1
<PAGE> 48
(vi) If applicable, the shares of Common Stock issuable upon conversion of
any of the shares of Preferred Stock or Depositary Shares, or the exercise of
Warrant Securities, have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary corporate action on
the part of the Company and such shares, when issued upon such conversion or
exercise in accordance with the charter of the Company, the Deposit Agreement,
the Terms Agreement, or the Warrant Agreement, as the case may be, will be duly
authorized and validly issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion or exercise will not be subject to
preemptive or other similar rights arising under the Charter or Bylaws of the
Company, or under the MGCL;
(vii) The applicable Warrant Agreement, if any, and the applicable Deposit
Agreement, if any, have been duly authorized by the Company, and the person(s)
executing such agreements on behalf of the Company have been duly authorized to
do so.
(viii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in whose
names such Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, to the extent such rights are
governed by the laws of the State of Maryland and assuming the validity and
enforceability of the Deposit Agreement.
(ix) The execution and delivery on behalf of the Company of each of this
Agreement, the applicable Terms Agreement has been duly authorized by the
Company, and the person(s) executing each such agreement on behalf of the
Company have been duly authorized to do so.
(x) If applicable, the relative rights, preferences, interests and powers
of the Preferred Shares or Depositary Shares, as the case may be, are as set
forth in the Articles Supplementary relating thereto, and all such provisions
are valid under the MGCL; and, as applicable, the form of certificate used to
evidence the Preferred Shares being represented by the Depositary Shares and the
form of certificate used to evidence the related Depositary Receipts are in due
and proper form under the MGCL and comply with all applicable statutory
requirements under the MGCL.
(xi) The Underwritten Securities, the Warrant Securities, and the shares
of Common Stock issuable upon conversion of the Preferred Shares or Depositary
Shares, as applicable, conform in all material respects to the descriptions
thereof contained in the Prospectus, insofar as such descriptions relate to the
Charter or Bylaws of the Company or issues arising under the MGCL, and the form
of certificate used to evidence the Underwritten Securities, if applicable, is
in due and proper form and complies in all material respects with all applicable
statutory requirements under the MGCL.
(xii) The execution and delivery by the Company of each of the partnership
agreements entered into by the Maryland corporation subsequent to the
organization of the Company in the State of Maryland in May 1993 to which the
Company or any of its subsidiaries organized under the laws of the State of
Maryland is a party, and which relates to real property described in the
C-2
<PAGE> 49
Prospectus, has been duly authorized by such applicable party, and the person(s)
executing each such agreement on behalf of such applicable party have been
authorized to do so.
C-3
<PAGE> 50
Exhibit D
FORM OF OPINION OF THE COMPANY'S
GENERAL COUNSEL TO BE DELIVERED PURSUANT
TO SECTION 5(d)
(i) To the best of his knowledge and information, the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which the Company owns or leases real property, except
where the failure to so qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(ii) To the best of his knowledge and information, there are no legal or
governmental proceedings pending or threatened against the Company or any of its
subsidiaries which are required to be disclosed in the Prospectus, other than
those disclosed therein, and all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of the
property or assets of the Company or its subsidiaries is the subject which are
not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material.
(iii) To the best of his knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct in all material respects, and, to the
best of his knowledge and information, no default exists in the due performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed which would have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iv) To the best of his knowledge and information, there are no persons
with registration or other similar rights to have any securities registered
pursuant to the Registration Statement.
(v) To the best of his knowledge and information, the execution and
delivery of this Agreement, the applicable Terms Agreement, the applicable
Deposit Agreement, if any, or the applicable Warrant Agreement, if any, and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or result in the creation or
D-1
<PAGE> 51
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in violation of the
provisions of the charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court order or decree.
(vi) To the best of his knowledge and information, except as otherwise
stated in the Prospectus and except as would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise: (a) all of the issued and outstanding capital stock of each
corporate subsidiary of the Company are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity and (b) all of the Company's ownership
interests in each partnership subsidiary of the Company are owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The execution, delivery and performance of any of the partnership
agreements to which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, did not, at the time of
execution and delivery, and does not constitute a breach of, or default under,
the charter or by-laws of the Company or any of its subsidiaries, as applicable,
or any material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law, administrative
regulation or administrative or court decree.
(viii) The Company and/or its respective subsidiaries hold title to the
properties and assets described in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the Prospectus and such other
liens, encumbrances and matters of record which do not materially and adversely
affect the value of such properties and assets considered in the aggregate.
(ix) To the best of his knowledge and information, each subsidiary (which
term, as used in such opinion, shall be defined to include corporations,
material limited and general partnerships and other entities) is duly qualified
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
D-2
<PAGE> 52
Exhibit E
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(h)
We are independent public accountants with respect to the Company and the
Predecessor within the meaning of the 1933 Act and the 1933 Act Regulations and:
(i) in our opinion, the audited consolidated financial statements
and the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company for the [three- month periods ended _________, 19__ and _________,
19__, the three- and six-month periods ended _________, 19__ and
_________, 19__ and the three- and nine-month periods ended _________,
19__ and _________, 19__, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials")] [, a reading of the unaudited interim consolidated financial
statements of the Company for the _____-month periods ended _________,
19___ and _________, 19___, included or incorporated by reference in the
Registration Statement and the Prospectus (the "_____- month financials")]
[, a reading of the latest available unaudited interim consolidated
financial statements of the Company], a reading of the minutes of all
meetings of the stockholders and directors of the Company and its
subsidiaries and committees thereof since [day after end of last audited
period], inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by
the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the [description of relevant periods] and such other inquiries
and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations applicable
to unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials
included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;
E-1
<PAGE> 53
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more
than three days prior to the date of the applicable Terms Agreement,
there was any change in the capital stock of the Company and its
subsidiaries, any decrease in the net assets of the Company and its
subsidiaries or any increase in the debt of the Company and its
subsidiaries, in each case as compared with amounts shown in the
most recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, except
in each case for any changes, decreases or increases that the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from] _________, 19__ to a specified date not
more than three days prior to the date of the applicable Terms
Agreement, there was any decrease in consolidated revenue, operating
income, funds from operation or net income or net income per share
of the Company, in each case as compared with the comparable period
in the preceding year, except in each case for any decreases that
the Registration Statement and the Prospectus discloses have
occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and
a reading of the Selected Financial Information included or incorporated
by reference in the Registration Statement and the Prospectus [and a
reading of the financial statements from which such data were derived],
nothing came to our attention that caused us to believe that the Selected
Financial Information included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
Selected Financial Information are not in agreement with the corresponding
amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included or
incorporated by reference in the Registration Statement and the Prospectus
from which certain of such data were derived are not in conformity with
generally accepted accounting principles;]
E-2
<PAGE> 54
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein, nothing came
to our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company that have not been included or incorporated by reference in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 71, nothing came to our attention that
caused us to believe that the unaudited amounts for ________ for the [most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the Pro Forma Statements comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
E-3
<PAGE> 55
been properly applied to the historical amounts in the compilation of
those statements;] and
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, which are specified herein, and have
compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
E-4
<PAGE> 1
EXHIBIT 1.02
6,000,000 Shares
EXCEL REALTY TRUST, INC.
(a Maryland Corporation)
Depositary Shares Each Representing
a 1/10th Fractional Interest In a Share of
Series B Cumulative Redeemable Preferred Stock
(Par Value $.01 Per Share of Preferred Stock)
(Liquidation Preference Equivalent to
$25.00 Per Depositary Share)
TERMS AGREEMENT
Dated: January 8, 1998
To: Excel Realty Trust, Inc.
16955 Via Del Campo
San Diego, California 92127
Attention: Chairman of the Board of Directors
Dear Sirs:
We understand that Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 6,000,000 depositary shares (the
"Depositary Shares") evidenced by depositary receipts (the "Depositary
Receipts") each representing a 1/10th fractional interest in a share of the
Company's Series B Cumulative Redeemable Preferred Stock, $.01 par value (the
"Series B Preferred Stock") (such Series B Preferred Stock, Depositary Shares
and Depositary Receipts being hereinafter referred to collectively as the
"Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective numbers of shares of Initial
Underwritten Securities (as defined in the Underwriting Agreement referred to
below) set forth below opposite their respective names, and a proportionate
share of Option Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased, at the purchase price set forth below.
1
<PAGE> 2
Number of Shares
of Initial
Underwritten
Underwriter Securities
----------- ----------------
Smith Barney Inc.......................................... 1,110,000
A.G. Edwards & Sons, Inc.................................. 1,110,000
Morgan Stanley & Co. Incorporated......................... 1,110,000
Prudential Securities Incorporated........................ 1,110,000
PaineWebber Incorporated.................................. 1,110,000
Bear, Stearns & Co. Inc................................... 25,000
Cowen & Company ......................................... 25,000
Dain Rauscher Incorporated................................ 25,000
EVEREN Securities, Inc.................................... 25,000
Fahnestock & Co. Inc...................................... 25,000
First Albany Corporation.................................. 25,000
Gibraltar Securities Co................................... 25,000
Janney Montgomery Scott Inc............................... 25,000
J.C. Bradford & Co........................................ 25,000
Legg Mason Wood Walker, Incorporated...................... 25,000
McDonald & Company Securities, Inc........................ 25,000
McGinn, Smith & Co., Inc.................................. 25,000
Morgan Keegan & Company, Inc.............................. 25,000
Piper Jaffray Inc......................................... 25,000
Raymond James & Associates, Inc........................... 25,000
The Robinson-Humphrey Company, LLC........................ 25,000
Tucker Anthony Incorporated............................... 25,000
U.S. Clearing Corp........................................ 25,000
---------
Total 6,000,000
=========
The Underwritten Securities shall have the following terms:
Title of Securities: Depositary Shares Each Representing a 1/10th Fractional
Interest in a Share of 85/8% Series B Cumulative
Redeemable Preferred Stock.
Number of Shares: 6,000,000
Fractional interest of each share of Series B Preferred Stock represented by a
Depositary Share: 1/10th.
Current Ratings: Standard & Poor's Corporation: BBB-; Moody's Investors
Service, Inc.: Baa3
Dividend Rate: 85/8% of the liquidation preference per share of Series B
Preferred Stock per annum (or $2.15625 per Depositary Share).
Dividend Payment Dates: January 15, April 15, July 15 and October 15 (or, if not
a business day, then the immediately succeeding business
day), commencing on April 15, 1998.
Liquidation Preference: $250.00 per share of Series B Preferred Stock (or
$25.00 per Depositary Share).
Public offering price per Share: $25.00 plus accrued distributions, if any, from
the date of original issue.
2
<PAGE> 3
Purchase price per Share: $24.2125 plus accrued distributions, if any, from the
date of original issue.
Conversion provisions: Not convertible into any other securities of the Company.
Optional redemption provisions: The Series B Preferred Stock and the Depositary
Shares representing such Series B Preferred
Stock are not redeemable prior to
January 13, 2003. On and after
January 13, 2003, the Series B Preferred Stock
and related Depositary Shares may be redeemed
at the option of the Company, in whole or in
part, at a redemption price of $250.00 per
share of Series B Preferred Stock (or $25.00
per Depositary Share), plus accrued and unpaid
distributions, if any, thereon. The redemption
price of the Series B Preferred Stock (other
than any portion thereof consisting of accrued
and unpaid distributions) may be paid solely
from the sale proceeds of other capital stock
of the Company, which may include other classes
or series of preferred stock, and from no other
source.
Mandatory redemption provisions: None.
Sinking fund requirements: None.
Number of Option Securities, if any, that may be purchased by the
Underwriters: 900,000
Delayed Delivery Contracts: Not authorized.
Other material terms: None.
Closing date and location: January 13, 1998, 9:00 AM; Brown & Wood LLP, One
World Trade Center, New York, New York 10048.
3
<PAGE> 4
All the provisions contained in the document attached as Annex A hereto
entitled "Excel Realty Trust, Inc.-Common Stock, Preferred Stock, Depositary
Shares, Warrants and Debt Securities Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than 6:00 o'clock P.M. (New York City
time) on January 8, 1998 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
SMITH BARNEY INC.
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: Smith Barney Inc.
By: /s/ MARK R. PATTERSON
--------------------------------
Name: Mark R. Patterson
Title: Authorized Signatory
Acting on behalf of themselves and the
other named Underwriters.
Accepted:
EXCEL REALTY TRUST, INC.
By: /s/ GARY B. SABIN
--------------------------------
Name: Gary B. Sabin
Title: Chief Executive Officer
4
<PAGE> 1
EXHIBIT 4.01
Page 1
EXCEL REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
690,000 SHARES OF PREFERRED STOCK AS
8% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
Pursuant to Section 2-105 of the Maryland General Corporation Law
("MGCL"), Excel Realty Trust, Inc., a corporation organized and existing under
the laws of the State of Maryland and having its principal office in the State
of Maryland located at c/o The Prentice Hall Corporation System, Maryland, 11
East Chase Street, Baltimore City, Maryland 21202 (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Article V of the Corporation's Charter
(inclusive of these Articles Supplementary) and Section 2-105 of the MGCL, the
Board of Directors has, by unanimous written consent, adopted resolutions
classifying and designating a separate class of authorized but unissued
Preferred Stock of the Corporation to consist of not more than 690,000 shares,
and, pursuant to the powers contained in the Bylaws of the Corporation and the
MGCL, appointing a Committee (the "Committee") of the Board of Directors
comprised of Gary B. Sabin and Richard B. Muir, and delegating to the Committee,
to the fullest extent permitted by Maryland law and the Charter and Bylaws of
the Corporation, all powers of the Board of Directors with respect to
designating and setting of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to distributions, qualifications and terms
and conditions of redemption of such class of Preferred Stock and determining
the number or shares of such class of Preferred Stock (not in excess of the
aforesaid maximum number) to be issued and the price and other terms and
conditions upon which shares of such class of Preferred Stock are to be offered,
sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has, by unanimous written consent, duly adopted
resolutions designating the aforesaid class of Preferred Stock as "8% Series
B Cumulative Redeemable Preferred Stock," setting the preferences, conversion
and other rights, voting powers, restrictions and limitations as to
distributions, qualifications and terms and conditions of redemption of such
8% Series B Cumulative Redeemable Preferred Stock (to the extent not set by
the Board of Directors in the resolutions referred to in Article FIRST of these
Articles Supplementary) and authorizing the issuance of 690,000 shares of 8%
Series B Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by
the resolutions duly adopted by the Board of Directors of the Corporation and by
the Committee and referred to in Articles FIRST and SECOND of these Articles
Supplementary shall have the following designation, number of shares,
preferences, conversion and other rights, voting powers, restrictions and
limitations as to distributions, qualifications, terms and conditions of
redemption and other terms and conditions:
Section 1. Number of Shares and Designation. This separate class
of Preferred Stock shall be designated as 8% Series B Cumulative Redeemable
Preferred Stock (the "Series B Preferred Stock") and Six Hundred Ninety Thousand
(690,000) shall be the number of shares of such Preferred Stock constituting
such class, subject, however, to increase or decrease upon further action of the
Board of Directors in the future as permitted by the Charter and applicable law.
Section 2. Definitions. For purposes of the Series B Preferred
Stock, the following terms shall have the meanings indicated:
<PAGE> 2
Page 2
"Affiliate" of a person means a person that, directly or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the person specified.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to perform
any of its responsibilities with respect to the Series B Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which state or federally chartered banking institutions in New York,
New York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Common Stock" shall mean the Common Stock, $.01 par value per
share, of the Corporation.
"Distribution Payment Date" shall mean, with respect to each
Distribution Period, the fifteenth day of January, April, July and October, in
each year, commencing on April 15, 1998; provided, however, that if any
Distribution Payment Date falls on any day other than a Business Day, the
distribution payment due on such Distribution Payment Date shall be paid on the
Business Day immediately following such Distribution Payment Date.
"Distribution Periods" shall mean quarterly distribution periods
commencing on January 1, April 1, July 1 and October 1 of each year and ending
on and including the day preceding the first day of the next succeeding
Distribution Period (other than the initial Distribution Period, which shall
commence on the Issue Date and end on and include March 31, 1998).
"Depositary Shares" shall mean the Depositary Shares each
representing one-tenth (1/10) of a share of Series B Preferred Stock.
"Equity Stock" shall have the meaning set forth in the Charter.
"Issue Date" shall mean January 13, 1998.
"Junior Stock" shall mean the Common Stock and any other class or
series of capital stock of the Corporation over which the shares of Series B
Preferred Stock have preference or priority in the payment of distributions or
in the distribution of assets on any liquidation, dissolution or winding up of
the Corporation.
"Liquidation Preference" shall mean a price per share equal to
Two Hundred Fifty Dollars ($250.00).
"Parity Stock" shall have the meaning set forth in paragraph (b)
of Section 7 hereof.
"Person" shall mean any individual, firm, partnership,
corporation or other entity and shall include any successor (by merger or
otherwise) of such entity.
<PAGE> 3
Page 3
"Record Date" shall mean the date designated by the Board of
Directors of the Corporation at the time a distribution is declared; provided,
however, that such Record Date shall be the first day of the calendar month in
which the applicable Distribution Payment Date falls or such other date
designated by the Board of Directors for the payment of distributions that is
not more than thirty (30) days nor less than ten (10) days prior to such
Distribution Payment Date.
"Redemption Price" shall mean a price per share equal to Two
Hundred Fifty Dollars ($250.00) together with accrued and unpaid distributions,
if any, thereon to the Call Date.
"Series A Preferred Stock" shall mean the 8 1/2% Series A
Cumulative Convertible Preferred Stock, $.01 par value per share, of the
Corporation.
"Series B Preferred Stock" shall have the meaning set forth in
Section 1 hereof.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of distributions by the Board of Directors, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation.
"Voting Preferred Stock" shall have the meaning set forth in
Section 8 hereof.
Section 3. Distributions.
(a) The holders of Series B Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, cumulative distributions payable in
cash in an amount per share of Series B Preferred Stock equal to $21.5625 per
annum per share at the rate of 8% per annum of the Liquidation Preference.
Such distributions shall accrue and be cumulative from the Issue Date, whether
or not in any Distribution Period or Periods such distributions shall be
declared or there shall be funds of the Corporation legally available for the
payment of such distributions, and shall be payable quarterly in arrears on the
Distribution Payment Dates, commencing on April 15, 1998. Each such distribution
shall be payable in arrears to the holders of record of the Series B Preferred
Stock, as they appear on the stock records of the Corporation at the close of
business on the Record Date for such distribution. Accumulated, accrued and
unpaid distributions for any past Distribution Periods may be declared and paid
at any time, without reference to any regular Distribution Payment Date, to
holders of record on the Record Date therefor. The amount of accumulated,
accrued and unpaid distributions on any share of Series B Preferred Stock, or
fraction thereof, at any date shall be the amount of any distributions thereon
calculated at the applicable rate to and including such date, whether or not
earned or declared, which have not been paid in cash. Any distribution payment
made on shares of Series B Preferred Stock shall be first credited against the
earliest accrued but unpaid distribution due which remains payable. Upon
issuance, the Series B Preferred Stock will rank on parity as to distributions
with the Series A Preferred Stock.
(b) The amount of distributions payable per share of Series B
Preferred Stock for each full Distribution Period shall be computed by dividing
the annual distribution by four (4). The amount of distributions payable per
share of Series B Preferred Stock for the initial Distribution Period, or any
other period shorter or longer than a full Distribution Period, shall be
computed ratably on the basis of a 360-day year consisting of twelve (12) 30-day
months. Holders of Series B Preferred Stock shall not be entitled to any
distributions, whether payable in cash, property or stock, in excess of
cumulative distributions, as herein provided, on the Series B Preferred Stock,
except for distributions upon liquidation, dissolution or winding up of the
Corporation to which the holders of
<PAGE> 4
Page 4
Series B Preferred Stock are entitled pursuant to Section 4 below. No interest,
or sum of money in lieu of interest, shall be payable in respect of any
distribution payment or payments on the Series B Preferred Stock that may be in
arrears.
(c) So long as any of the shares of Series B Preferred Stock are
outstanding, no distributions, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment by the Corporation
or other distribution of cash or other property declared or made directly or
indirectly by the Corporation with respect to any class or series of Parity
Stock for any period unless distributions equal to the full amount of
accumulated, accrued and unpaid distributions have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof have
been or contemporaneously are set apart for such payment on the Series B
Preferred Stock for all Distribution Periods terminating on or prior to the
Distribution Payment Date with respect to such class or series of Parity Stock.
When distributions are not paid in full or a sum sufficient for such payment is
not set apart, as aforesaid, all distributions declared upon the Series B
Preferred Stock and all distributions declared upon any other class or series of
Parity Stock shall be declared ratably in proportion to the respective amounts
of distributions accumulated, accrued and unpaid on the Series B Preferred Stock
and accumulated, accrued and unpaid on such Parity Stock.
(d) Unless full distributions on the Series B Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past
Distribution Periods and the then current Distribution Period (i) except as set
forth in Section 3(a) above, no distributions (other than in Junior Stock, or
options, warrants or rights to subscribe therefor) shall be declared or paid or
set aside for payment, or other distribution of cash or property declared or
made directly or indirectly by the Corporation with respect to any shares of
Junior Stock or Parity Stock, and (ii) no Junior Stock or Parity Stock
(including less than all of the Series B Preferred Stock) shall be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid or
made available for a sinking fund for the redemption of any shares of such
stock) directly or indirectly by the Corporation except by conversion into or
exchange for Junior Stock and except for a redemption or purchase or other
acquisition of Common Stock or other equity securities of the Corporation for
purposes of an employee benefit plan of the Corporation or any subsidiary or as
provided under the Charter to protect the Corporation's status as a REIT.
(e) Notwithstanding anything contained herein to the contrary, no
distributions on shares of Series B Preferred Stock shall be authorized or
declared by the Board of Directors of the Corporation or paid or set apart for
payment by the Corporation at such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to its
indebtedness, prohibits such authorization, declaration, payment or setting
apart for payment or provides that such authorization, declaration, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder, or to the extent such declaration or payment shall be restricted or
prohibited by law.
(f) Notwithstanding anything contained herein to the contrary,
distributions on the Series B Preferred Stock, if not paid on the applicable
Distribution Payment Date, will accrue whether or not distributions are
authorized or declared for such Distribution Payment Date, whether or not the
Corporation has earnings, whether or not there are funds legally available for
the payment of such distributions and whether or not any agreement of the
Corporation prohibits the payment of such distributions.
(g) If, for any taxable year, the Corporation elects to designate
as a "capital gain dividend" (as defined in Section 857 of the Code) any portion
(the "Capital Gain Amount") of the
<PAGE> 5
Page 5
distributions paid or made available for the year to holders of all classes of
stock (the "Total Distributions"), then the portion of the Capital Gain Amount
that shall be allocable to holders of the Series B Preferred Stock shall be the
amount that the total distributions paid or made available to the holders of the
Series B Preferred Stock for the year bears to the Total Distributions.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for holders of Junior Stock, the holders of shares of
Series B Preferred Stock shall be entitled to receive Two Hundred Fifty Dollars
($250.00) per share of Series B Preferred Stock plus an amount equal to all
distributions (whether or not declared) accumulated, accrued and unpaid thereon
to the date of final distribution to such holders, but such holders shall not be
entitled to any further payment. Until the holders of the Series B Preferred
Stock have been paid the liquidation preference in full, no payment will be made
to any holder of Junior Stock upon the liquidation, dissolution or winding up of
the Corporation. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof, distributable
among the holders of Series B Preferred Stock shall be insufficient to pay in
full the preferential amount aforesaid and liquidating payments on any other
shares of any class or series of Parity Stock, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series B Preferred Stock and
any such other Parity Stock ratably in the same proportion as the respective
amounts that would be payable on such Series B Preferred Stock and any such
other Parity Stock if all amounts payable thereof were paid in full. For
purposes of this Section 4, (i) a consolidation or merger of the Corporation
with one or more corporations, (ii) a sale, lease, transfer or conveyance of all
or substantially all of the Corporation's assets, or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding,
voluntary or involuntary, of the Corporation. The Series B Preferred Stock will
rank on a parity with the Series A Preferred Stock as to liquidation rights.
(b) Subject to the rights of the holders of any shares of Parity
Stock, upon any liquidation, dissolution or winding up of the Corporation, after
payment shall have been made in full to the holders of Series B Preferred Stock
and any Parity Stock, as provided in this Section 4, any other series or class
or classes of Junior Stock shall, subject to the respective terms thereof, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of the Series B Preferred Stock and any Parity Stock shall not be
entitled to share therein.
(c) In determining whether a distribution (other than upon
voluntary or involuntary liquidation) by distribution, redemption or other
acquisition of shares of stock of the Corporation or otherwise is permitted
under the MGCL, no effect shall be given to amounts that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of holders of shares of stock of the
Corporation whose preferential rights upon dissolution are superior to those
receiving the distribution.
Section 5. Redemption.
(a) Except as otherwise permitted under Article VII of the
Charter, shares of Series B Preferred Stock shall not be redeemable by the
Corporation prior to January 13, 2003. On and after January 13, 2003, the
Corporation, at its option, may redeem shares of Series B Preferred Stock in
whole or, from time to time, in part at the Redemption Price. The Redemption
Price of the Series B Preferred Stock payable pursuant to this Section 5(a)
(other than any portion thereof consisting of accrued and unpaid distributions)
may be paid solely from the sale of proceeds of other capital stock of the
Corporation and not from any other source. For purposes of the preceding
<PAGE> 6
Page 6
sentence, "capital stock" means any equity securities (including Common Stock
and preferred stock), depositary shares, interests, participations or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(b) Shares of Series B Preferred Stock shall be redeemed by the
Corporation on the date specified in the notice to holders required under
paragraph (d) of this Section 5 (the "Call Date"). The Call Date shall be
selected by the Corporation, shall be specified in the notice of redemption and
shall be not less than thirty (30) nor more than sixty (60) days after the date
notice of redemption is sent by the Corporation. Upon any redemption of shares
of Series B Preferred Stock pursuant to paragraph (a) of this Section 5, the
Corporation shall pay in cash to the holder of such shares an amount equal to
all accumulated, accrued and unpaid distributions, if any, to the Call Date,
whether or not earned or declared. Immediately prior to authorizing any
redemption of the Series B Preferred Stock, and as a condition precedent for
such redemption, the Corporation, by resolution of its Board of Directors, shall
declare a mandatory distribution on the Series B Preferred Stock payable in cash
on the Call Date in an amount equal to all accumulated, accrued and unpaid
distributions as of the Call Date on the Series B Preferred Stock to be
redeemed, which amount shall be added to the redemption price. If the Call Date
falls after a distribution Record Date and prior to the corresponding
Distribution Payment Date, then each holder of Series B Preferred Stock at the
close of business on such distribution Record Date shall be entitled to the
distribution payable on such shares on the corresponding Distribution Payment
Date notwithstanding the redemption of such shares prior to such Distribution
Payment Date. Except as provided above, the Corporation shall make no payment or
allowance for accumulated or accrued distributions on shares of Series B
Preferred Stock called for redemption.
(c) If the Corporation shall redeem shares of Series B Preferred
Stock pursuant to paragraph (a) of this Section 5, notice of such redemption
shall be given to each holder of record of the shares to be redeemed. Such
notice shall be provided by first class mail, postage prepaid, at such holder's
address as the same appears on the stock records of the Corporation, or by
publication 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, such publication to be made once a week for
two (2) successive weeks commencing not less than thirty (30) nor more than
sixty (60) days prior to the Call Date. If the Corporation elects to provide
such notice by publication, it shall also promptly mail notice of such
redemption to the holders of the shares of Series B Preferred Stock to be
redeemed. Neither the failure to give any notice required by this paragraph (c),
nor any defect therein or in the mailing thereof, to any particular holder,
shall affect the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice which was mailed in
the manner herein provided shall be conclusively presumed to have been duly
given on the date mailed whether or not the holder receives the notice. Each
such mailed or published notice shall state, as appropriate: (i) the Call Date;
(ii) the Redemption Price; (iii) the number of shares of Series B Preferred
Stock to be redeemed and, if fewer than all such shares held by such holder are
to be redeemed, the number of such shares to be redeemed from such holder (and
the equivalent number of Depositary Shares); (iv) the place or places at which
the certificates evidencing the shares of Series B Preferred Stock are to be
surrendered for payment of the Redemption Price; and (v) that distributions on
the shares of Series B Preferred Stock to be redeemed shall cease to accrue on
such Call Date except as otherwise provided herein. Notice having been published
or mailed as aforesaid, and provided that on or before the Call Date specified
in such notice the amount of cash necessary to effect such redemption shall have
been set aside by the Corporation, separate and apart from its other funds in
trust for the pro rata benefit of the holders of the shares of Series B
Preferred Stock so called for redemption, from and after the Call Date,
including all accumulated, accrued and unpaid distributions to the Call Date,
whether or not earned or declared, (i) except as otherwise provided
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herein, distributions on the shares of Series B Preferred Stock so called for
redemption shall cease to accumulate or accrue on the shares of Series B
Preferred Stock called for redemption (except that, in the case of a Call Date
after a distribution Record Date and prior to the related Distribution Payment
Date, holders of Series B Preferred Stock on the distribution Record Date will
be entitled on such Distribution Payment Date to receive the distribution
payable on such shares), (ii) said shares shall no longer be deemed to be
outstanding, (iii) all rights of the holders thereof as holders of Series B
Preferred Stock of the Corporation shall cease (except the rights to receive the
cash payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
distributions payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust company
(which may be an affiliate of the Corporation) that has an office in the Borough
of Manhattan, The City of New York, or in Los Angeles or San Diego, California,
and that has or is an affiliate of a bank or trust company that has, a capital
and surplus of at least $50,000,000, such amount of cash as is necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the shares of Series B Preferred Stock so called
for redemption. No interest shall accrue for the benefit of the holders of
shares of Series B Preferred Stock to be redeemed on any cash so set aside by
the Corporation. Subject to applicable escheat laws, any such cash unclaimed at
the end of two (2) years from the Call Date shall revert to the general funds of
the Corporation, after which reversion the holders of shares of Series B
Preferred Stock so called for redemption shall look only to the general funds of
the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with
said notice of the certificates for any such shares of Series B Preferred Stock
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and if the notice shall so state), such certificates shall be
exchanged for cash (without interest thereon) for which such shares have been
redeemed in accordance with such notice. If fewer than all the outstanding
shares of Series B Preferred Stock are to be redeemed, shares to be redeemed
shall be selected by the Corporation from outstanding shares of Series B
Preferred Stock not previously called for redemption by lot or, with respect to
the number of shares of Series B Preferred Stock held of record by each holder
of such shares, pro rata (as nearly as may be) or by any other method as may be
determined by the Board of Directors in its discretion to be equitable. If fewer
than all the shares of Series B Preferred Stock represented by any certificates
are redeemed, then a new certificate representing the unredeemed shares of
Series B Preferred Stock shall be issued without cost to the holders thereof.
Section 6. Stock to be Retired. All shares of Series B Preferred
Stock which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued shares of
Preferred Stock, without further designation as to series or class. The
Corporation may also retire any unissued shares of Series B Preferred Stock, and
such shares shall then be restored to the status of authorized but unissued
shares of Preferred Stock, without further designation as to series or class.
Section 7. Ranking. Any class or series of capital stock of the
Corporation shall be deemed to rank:
(a) prior or senior to the Series B Preferred Stock, as to
the payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if the holders of such class or series
of stock shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may be,
in preference or priority to the holders of Series B Preferred Stock;
(b) on a parity with the Series B Preferred Stock, as to
the payment of
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Page 8
distributions and as to the distribution of assets upon liquidation, dissolution
or winding up, whether or not the distribution rates, distribution payment dates
or redemption or liquidation prices per share thereof be different from those of
the Series B Preferred Stock, if the holders of such class or series of stock
and the Series B Preferred stock shall be entitled to the receipt of
distributions and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
distributions per share or liquidation preferences, without preference or
priority one over the other ("Parity Stock"); and
(c) junior to the Series B Preferred Stock, as to the
payment of distributions or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series of stock shall be Common
Stock or if the holders of Series B Preferred shall be entitled to receipt of
distributions or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
shares of such class or series of stock ("Junior Stock").
Section 8. Voting Rights.
(a) If and whenever six quarterly distributions (whether or not
consecutive) payable on the Series B Preferred Stock shall be in arrears (which
shall, with respect to any such quarterly distribution, mean that any such
distribution has not been paid in full), whether or not earned or declared, the
number of directors then constituting the Board of Directors shall be increased
by two (2) (if not already increased by reason of a similar arrearage with
respect to any Parity Stock) and the holders of shares of Series B Preferred
Stock, together with the holders of shares of every other class or series of
Parity Stock (any other such class or series, the "Voting Preferred Stock")
entitled to vote on the matter, voting together as if they were a single class,
shall be entitled, in order to fill the vacancies thereby created, to elect two
(2) additional directors at the next annual meeting of stockholders or special
meeting held in place thereof, or at a special meeting of the holders of the
Series B Preferred Stock and the Voting Preferred Stock entitled to vote
thereon, called as hereinafter provided, and at each succeeding annual meeting
at which their respective successors are to be elected. Each such vacancy shall
be apportioned among the classes of directors to prevent stacking in any one
class and to ensure that all directors in each of the classes of directors are
as equal in number as possible. Each such director, as a qualification for
election as such (and regardless of how elected) shall submit to the Board of
Directors a duly-executed, valid, binding and enforceable letter of resignation
from the Board, to be effective immediately upon the date on which all arrears
in distributions on the Series B Preferred Stock and the Voting Preferred Stock
then outstanding and holding similar rights in respect of the election of
additional directors shall have been paid and distributions thereon for the
current quarterly distribution period shall have been paid or declared and set
apart for payment, whereupon the right of the holders of the Series B Preferred
Stock and the Voting Preferred Stock to elect such additional two (2) directors
shall cease (but subject always to the same provision for the vesting of such
voting rights in the case of any similar future arrearages in six (6) quarterly
distributions), and the terms of office of all persons elected as directors by
the holders of the Series B Preferred Stock and the Voting Preferred Stock
shall, upon the effectiveness of their respective letters of resignation,
forthwith terminate, and the number of the Board of Directors shall be reduced
accordingly. At any time after such voting power shall have been so vested in
the holders of Series B Preferred Stock and the Voting Preferred Stock, the
Secretary of the Corporation may, and upon the written request of any holder of
Series B Preferred Stock (addressed to the Secretary at the principal office of
the Corporation) shall, call a special meeting of the holders of the Series B
Preferred Stock and of the Voting Preferred Stock for the election of the two
(2) directors to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation for a special
meeting of the stockholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the Secretary
within twenty (20) days after receipt of any such request, then any holder of
Series B Preferred Stock may call such meeting, upon the
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notice above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the stockholders at which their
respective successors are to be elected. If any vacancy shall occur among the
directors elected by the holders of the Series B Preferred Stock and the Voting
Preferred Stock entitled to vote thereon, a successor shall be elected by the
Board of Directors, upon the nomination of the then remaining Director elected
by the holders of the Series B Preferred Stock and such Voting Preferred Stock
or the successor of such remaining Director, to serve for the remainder of the
term of the director creating the vacancy, subject however to earlier
resignation as herein provided.
(b) So long as any shares of Series B Preferred Stock are
outstanding, in addition to any other vote or consent of stockholders required
by law or by the Charter of the Corporation, the affirmative vote of at least
66 2/3% of the votes entitled to be cast by the holders of the Series B
Preferred stock and the Voting Preferred Stock, at the time outstanding, acting
as if they were a single class regardless of class or series, given in person or
by proxy, at any meeting, called for the purpose, or the affirmative vote of all
such holders delivered by unanimous written consent, shall be necessary for
effecting or validating:
(i) Any amendment, alteration or repeal of any of
the provisions of these Articles Supplementary or the
Charter of the Corporation that materially adversely
affects the voting powers, rights or preferences of the
holders of the Series B Preferred Stock or the Voting
Preferred Stock; provided, however, that the amendment of
the provisions of the Charter so as to authorize or
create, or to increase the authorized amount of, any
Junior Stock or any shares of any class ranking on a
parity with the Series B Preferred Stock or the Voting
Preferred Stock shall not be deemed to materially
adversely affect the voting powers, rights or preferences
of the holders of Series B Preferred Stock, and provided
further, that if any such amendment, alteration or repeal
would materially adversely affect any voting powers,
rights or preferences of the Series B Preferred Stock or
another series of Voting Preferred Stock that are not
enjoyed by some or all of the Series B Preferred Stock or
other class or series which otherwise would be entitled to
vote in accordance herewith, the affirmative vote of at
least 66 2/3% of the votes entitled to be cast by the
holders of all series or classes similarly affected given
in person or by proxy at a meeting duly called for the
purpose, or the affirmative vote of all such holders
delivered by unanimous written consent, shall be required
in lieu of the affirmative vote of at least 66 2/3% of the
votes entitled to be cast by the holders of the shares of
Series B Preferred Stock and the Voting Preferred Stock,
or the affirmative vote of all such holders by unanimous
written consent, which otherwise would be entitled to vote
in accordance herewith; or
(ii) The authorization or creation of, or the
increase in the authorized amount of, any shares of any
series or class or any security convertible into shares of
any series or class ranking prior or senior to the Series
B Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation
or the payment of distributions; provided, however, that
no such vote of the holders of Series B Preferred
Stock shall be required if, at or prior to the time when
such amendment, alteration or repeal is to take effect, or
when the issuance of any such prior shares or convertible
security is to be made, as the case may be, provision is
made for the redemption of all shares of Series B
Preferred Stock at the time outstanding.
For purposes of the foregoing provisions of this Section 8, each
share of Series B Preferred Stock shall have ten (10) votes per share, each of
which ten (10) votes may be directed
<PAGE> 10
Page 10
separately by the holder thereof (or by any proxy or proxies of such holder),
except that when any other class or series of preferred stock shall have the
right to vote together with the Series B Preferred Stock as if they were a
single class on any matter, then the Series B Preferred Stock and such other
class or series shall have with respect to such matters one (1) vote per $25.00
of stated liquidation preference, and fractional votes shall be ignored. With
respect to each share of Series B Preferred Stock, the holder thereof may
designate up to ten (10) proxies, with each such proxy having the right to vote
a whole number of votes (totalling ten (10) votes per share of Series B
Preferred Stock). Except as expressly stated in these Articles Supplementary,
the Series B Preferred Stock shall not have any relative, participating,
optional or other special voting rights and powers, and the consent of the
holders thereof shall not be required for the taking of any corporate action,
including but not limited to (i) any merger or consolidation involving the
Corporation in which the Corporation is the surviving entity if, immediately
after the merger or consolidation, there are outstanding no equity securities
ranking as to distribution rights or liquidation preference senior to the Series
B Preferred Stock other than the securities of the Corporation outstanding prior
to such merger or consolidation, (ii) any merger or consolidation in which the
Corporation is not the surviving entity if, as a result of the merger or
consolidation, the holders of the Series B Preferred Stock receive shares of
stock or other equity securities with preferences, rights and privileges
substantially similar to the preferences, rights and privileges of the Series B
Preferred Stock and there are outstanding no shares of stock or other equity
securities of the surviving entity ranking as to distribution rights or
liquidation preference senior to the Series B Preferred Stock other than the
securities issued in respect of securities of the Corporation outstanding prior
to such merger or consolidation, or (iii) any merger or consolidation involving
the Corporation, whether or not the Corporation is the surviving entity,
resulting in outstanding equity securities of the Corporation or its successor
(other than securities of the Corporation outstanding prior to such merger or
consolidation, or securities issued in respect of securities of the Corporation
outstanding prior to such merger or consolidation) ranking as to distribution
rights or liquidation preference senior to the Senior B Preferred Stock.
Section 9. Restrictions on Transfer, Acquisition and Redemption
of Shares.
(a) The Series B Preferred Stock constitutes a class of Preferred
Stock of the Corporation, and Preferred Stock constitutes Equity Stock of the
Corporation. Therefore, the Series B Preferred Stock, being Equity Stock, is
governed by and issued subject to all of the limitations, terms and conditions
of the Charter of the Corporation applicable to the Equity Stock generally,
including but not limited to the terms and conditions (including exceptions and
exemptions) of Article VII of the Charter applicable to Equity Stock; provided,
however, that the terms and conditions (including exceptions and exemptions) of
Article VII of the Charter applicable to Equity Stock shall also be applied to
the Series B Preferred Stock separately and without regard to any other series
or class. The foregoing sentence shall not be construed to limit the
applicability to the Series B Preferred Stock of any other term or provision of
the Charter.
(b) In addition to the legend contemplated by Article VII,
Section 11 of the Charter, each certificate for Series B Preferred Stock shall
bear substantially the following legend:
"The Corporation will furnish to any stockholder, on
request and without charge, a full statement of the information required
by Section 2-211(b) of the Corporations and Associations Article of the
Annotated Code of Maryland with respect to the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to distributions, qualifications, and terms and
conditions of redemptions of the stock of each class which the
Corporation has authority to issue and, if the Corporation is authorized
to issue any preferred or special class in series, (i) the differences
in the relative rights and preferences between the shares of each series
to the extent set, and (ii) the authority of the
<PAGE> 11
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Board of directors to set such rights and preferences of subsequent
series. The foregoing summary does not purport to be complete and is
subject to and qualified in its entirety by reference to the charter of
the Corporation, a copy of which will be sent without charge to each
stockholder who so requests. Such request must be made to the Secretary
of the Corporation at its principal office."
Section 10. Severability of Provisions. If any preference,
conversion or other right, voting power, restriction, limitation as to
distributions, qualification or term or condition of redemption of the Series B
Preferred Stock set forth herein is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other preferences,
conversion or other distributions, qualifications or terms or conditions of
redemption of Series B Preferred Stock set forth herein which can be given
effect without the invalid, unlawful or unenforceable provision thereof shall,
nevertheless, remain in full force and effect, and no preferences, conversion or
other rights, voting powers, restrictions, limitations as to distributions,
qualifications or terms or conditions or redemption of Series B Preferred Stock
herein set forth shall be deemed dependent upon any other provision thereof
unless so expressed therein.
Section 11. Registration as Depositary Shares. Shares of Series B
Preferred Stock shall be registered in the form of Depositary Shares each
representing a one-tenth (1/10) fractional interest in a share of Series B
Preferred Stock on such terms and conditions as may be provided for in any
agreement binding upon the Corporation (whether directly or through merger with
any other corporation).
FOURTH: The shares of Series B Preferred Stock have been
classified and designated by the Board of Directors under the authority
contained in the Charter.
FIFTH: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
SIXTH: The undersigned Senior Vice President of the Corporation
acknowledges these Articles Supplementary to be the corporate act of the
Corporation and, as to all matters or facts required to be verified under oath,
the undersigned Senior Vice President acknowledges that to the best of his
knowledge, information and belief, these matters and facts are true in all
material respects and that this statement is made under the penalties for
perjury.
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IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
Senior Vice President and attested to by its Assistant Secretary on this 12th
day of January, 1998.
ATTEST: EXCEL REALTY TRUST, INC.
/s/ Eric S. Ottesen By: /s/ Graham R. Bullick
- ------------------------- ---------------------------------
Eric S. Ottesen Name: Graham R. Bullick
Assistant Secretary Title: Senior Vice President
<PAGE> 1
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 150 Royall Street, Canton,
Massachusetts 02021.
1
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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
2
<PAGE> 3
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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<PAGE> 4
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 Registrar
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<PAGE> 12
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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<PAGE> 13
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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<PAGE> 14
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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<PAGE> 15
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.
16955 Via Del Campo, Suite 100
San Diego, California 92127
Attention: Corporate Secretary
Telephone No.: (619) 485-9400
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<PAGE> 16
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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<PAGE> 17
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/ GARY B. SABIN
--------------------------------
Gary B. Sabin
Chief Executive Officer
BANKBOSTON, N.A.
By: /s/ GEOFFREY D. ANDERSON
--------------------------------
Geoffrey D. Anderson
Authorized Signatory
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<PAGE> 18
EXHIBIT A
Form of Receipt
A-1
<PAGE> 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 16955 Via Del Campo, Suite 110, San Diego, California 92127,
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
<PAGE> 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 150 Royall Street, Mail Stop: 45-02-62,
Canton, MA 02021 (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
3504 ATLANTIC AVENUE
SUITE 12
LONG BEACH, CA 90807 054595bk
(562) 989-2333
(FAX) (562) 426-7450 Proof ___ REV 3
- ----------------------------------------------------
<PAGE> 1
EXHIBIT 4.03
[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 16955 Via Del Campo, Suite 110, San Diego, California 92127,
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
<PAGE> 2
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 150 Royall Street, Mail Stop: 45-02-62,
Canton, MA 02021 (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
3504 ATLANTIC AVENUE
SUITE 12
LONG BEACH, CA 90807 054595bk
(562) 989-2333
(FAX) (562) 426-7450 Proof ___ REV 3
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