THE TOWN AND COUNTRY TRUST
----------------------------------------,
as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
------------------------
DEPOSIT AGREEMENT
------------------------
Dated as of
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions.....................................................................
............... 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of
Receipts....................................... 2
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect
Thereof...................................... 3
SECTION 2.03. Registration of Transfer of
Receipts................................ 4
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Shares...................... 4
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of
Receipts.................................. 5
SECTION 2.06. Lost Receipts,
etc.................................................. 5
SECTION 2.07. Cancellation and Destruction of Surrendered
Receipts............................................................ 5
SECTION 2.08. Redemption of
Shares................................................ 5
SECTION 2.09. Excess Depositary
Shares............................................ 6
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information................... 8
SECTION 3.02. Payment of Taxes or Other Governmental
Charges...................... 8
SECTION 3.03. Warranty as to
Shares............................................... 8
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash
Distributions....................................................8
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or
Privileges.........................................................9
SECTION 4.03. Subscription Rights, Preferences or
Privileges........................9
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for
Holders of
Receipts...................................................10
SECTION 4.05. Voting
Rights.........................................................10
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations,
etc.............................10
SECTION 4.07. Delivery of
Reports...................................................11
SECTION 4.08. Lists of Receipt
Holders..............................................11
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE TRUST
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary;
Registrar................................... 11
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar
or the
Trust..........................................................12
SECTION 5.03. Obligation of the Depositary, the Depositary's
Agents,
the Registrar and the
Trust...........................................12
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor
Depositary...................................13
SECTION 5.05. Corporate Notices and
Reports.........................................14
SECTION 5.06. Indemnification by the
Trust..........................................15
SECTION 5.07. Charges and
Expenses..................................................15
SECTION 5.08. Tax
Compliance........................................................15
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01.
Amendment.............................................................15
SECTION 6.02.
Termination...........................................................16
ARTICLE VII
MISCELLANEOUS
SECTION 7.01.
Counterparts..........................................................16
SECTION 7.02. Exclusive Benefit of
Parties..........................................16
SECTION 7.03. Invalidity of
Provisions..............................................17
SECTION 7.04.
Notices...............................................................17
SECTION 7.05. Appointment of
Registrar..............................................17
SECTION 7.06. Holders of Receipts Are
Parties.......................................18
SECTION 7.07. Governing
Law.........................................................18
SECTION 7.08. Inspection of Deposit
Agreement.......................................18
SECTION 7.09.
Headings..............................................................18
SECTION 7.10. Trust
Disclaimer......................................................18
FORM OF DEPOSITARY SHARES
Form of Face of
Receipt.........................................................................
.A-1
Form of Reverse of
Receipt.......................................................................A-
3
DEPOSIT AGREEMENT, dated as of __________,_____ , among The Town and
Country Trust, a Maryland real estate investment trust, and its successors
(the "Trust"), ___________________ (the "Depositary"), and the holders from
time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of [TITLE OF PREFERRED SHARES] of the Trust
with the Depositary for the purposes set forth in this Deposit Agreement and for
the issuance hereunder of Receipts evidencing Depositary Shares in respect of
the Shares so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Articles" shall mean the Articles Supplementary filed with the
Maryland Department of Taxation and Assessments establishing the Shares as a
series of preferred stock of the Trust as such may be amended from time to time
in accordance with its terms.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean________________________and any successor as
Depositary hereunder.
"Depositary Shares" shall mean the depositary shares provided for
herein, each representing _____ of a Share evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.01 and shall include the Registrar if such Registrar is
not the Depositary.
"Depositary's Office" shall mean the principal office of the Depositary
at ___________, which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary or
any register of any Registrar maintained for such purpose.
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"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of Receipts
as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shares" shall mean the Trust's____% Preferred Shares of Beneficial
Interest, $_______ liquidation value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided, if
required by any securities exchange on which the Receipts are listed. Pending
the preparation of definitive Receipts or if definitive Receipts are not
required by any securities exchange on which the Receipts are listed, the
Depositary, upon the written order of the Trust or any holder of Shares, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are 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 Trust 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
Depositary's Office or at such other place or places as the Depositary shall
determine, 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
registered in the name of the holder of the temporary Receipt. Such exchange
shall be made at the Trust's expense and without any charge to the holder
therefor. Until so exchanged, the temporary Receipts shall in all respects be
entitled to the same benefits under this Agreement, and with respect to the
Shares, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; PROVIDED that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by a
manual signature of a duly authorized officer 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 manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or facsimile signature
of a duly authorized officer of the Depositary and countersigned, manually, by a
duly authorized officer of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided. The manual
or facsimile signatures of individuals who were at any time authorized
signatories of the Depositary or the Registrar, as the case may be, shall
constitute adequate signatures hereunder, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the delivery of
Receipts bearing such signatures or did not hold such office on the date of
delivery of such Receipts.
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Receipts shall be in denominations of any number of whole
Depositary Shares. The Trust shall deliver to the Depositary from time to time
such quantities of blank Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
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 any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Shares, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to any Receipt and to the Depositary Shares evidenced
by a Receipt, which is properly endorsed or accompanied by a properly executed
instrument of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; PROVIDED, HOWEVER, that until
transfer of a Receipt shall be registered on the books of the Depositary as
provided in Section 2.03, 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 distributions of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
The Depositary shall not lend any Shares deposited hereunder.
SECTION 2.02. DEPOSIT OF SHARES; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit
Agreement, the Trust or any holder of Shares may from time to time deposit
Shares under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Shares to be deposited, 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
all such certifications as may be required by the Depositary in accordance with
the provisions of this Deposit Agreement, and together with a written order of
the Trust or such holder, as the case may be, 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 number of Depositary Shares
representing such deposited Shares.
Deposited Shares shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
If required by the Depositary, Shares presented for deposit at
any time (except for the initial deposit of Shares and any subsequent deposit by
the Trust), whether or not the register of shareholders of the Trust is closed,
shall also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, that will provide for the prompt transfer to the
Depositary or its nominee of any dividend or right to subscribe for additional
shares or to receive other property that any person in whose name the Shares is
or has been registered may thereafter receive upon or in respect of such
deposited Shares, 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 Shares deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Shares on the books of the Trust in the name of the
Depositary or its nominee, 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
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delivered to the Depositary referred to in the first paragraph of this Section,
a Receipt or Receipts for the whole number of Depositary Shares representing the
Shares so deposited and registered in such name or names as may be requested by
such person or persons. The Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer together
with evidence of the payment of any transfer taxes as may be required by law.
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing the
same aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS;
SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. Upon surrender of a Receipt or
Receipts at the Depositary's office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered, provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
Any holder of a Receipt or Receipts representing any number of
whole Shares may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Shares and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole Shares and all money and other
property, if any, represented by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole Shares will not thereafter be entitled to
deposit such Shares hereunder or to receive Depositary Shares therefor. If a
Receipt 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 Shares to be so withdrawn,
the Depositary shall at the same time, in addition to such number of whole
shares of Shares and such money and other property, if any, to be so withdrawn,
deliver to such holder, or upon his order, a new Receipt evidencing such excess
number of Depositary Shares, provided, however, that the Depositary shall not
issue any Receipt evidencing a fractional Depositary Share. Delivery of the
Shares and 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 Shares and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Shares,
such holders 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 be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
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Delivery of the Shares and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's 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 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Trust may require payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Trust shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.02 and 5.07, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
and may also require compliance with such regulations, if any, as the Depositary
or the Trust may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Shares may be refused, the delivery of
Receipts against Shares may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender, exchange,
split-up or combination of outstanding Receipts may be suspended (i) during any
period when the register of Shareholders of the Trust is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Trust 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 2.06. LOST RECEIPTS, ETC. In case any Receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such mutilated, destroyed, lost or stolen Receipt, upon (i) the filing by the
holder thereof with the Depositary of evidence satisfactory to the Depositary of
such mutilation, destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the furnishing
of the Depositary with reasonable indemnification satisfactory to it and (iii)
the payment of any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Trust is authorized to destroy all Receipts so canceled.
SECTION 2.08. REDEMPTION OF SHARES. Whenever the Trust shall
be permitted and shall elect to redeem Shares in accordance with the provisions
of the Articles, it shall (unless otherwise agreed to in writing with the
Depositary) give or cause to be given to the Depositary not less than 40 days'
and not more than 70 days' notice of the date of such proposed redemption (the
"Redemption Date") and of the number of such Shares held by the Depositary to be
so redeemed and the applicable redemption price, as set forth in the Articles,
which notice shall be accompanied by a certificate from the Trust stating that
such redemption of Shares is in accordance with the provisions of the Articles.
On the date of such redemption, provided that the Trust shall then have paid or
caused to be paid in full to the Depositary the redemption price of the Shares
to be redeemed, plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption, in accordance with the provisions of the
Articles, the Depositary shall redeem the number of
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Depositary Shares representing such Shares. The Depositary shall mail notice of
the Trust's redemption of Shares and the proposed simultaneous redemption of the
number of Depositary Shares representing the Shares to be redeemed by first
class mail, postage prepaid, not less than 30 and not more than 60 days prior to
the Redemption Date to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the address of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more such holders nor any
defect in any notice of redemption of Depositary Shares to one or more such
holders shall affect the sufficiency of the proceedings for redemption as to the
other holders. The Trust will provide the Depositary with the information
necessary for the Depositary to prepare such notice and each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Shares represented by the
Depositary Shares to be redeemed will cease to accrue on such Redemption Date,
unless the Trust shall default in delivering the money or other property payable
by the Trust at the date and place specified by such notice. In case less than
all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be so redeemed shall be selected by the Depositary by lot or pro rata (as
nearly as may be) or by any other method, in each case, as determined by the
Depositary in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Trust shall have failed to provide the
funds necessary to redeem the Shares evidenced by the Depositary Shares called
for redemption) (i) dividends on the Shares so called for redemption shall cease
to accrue from and after such date, (ii) the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, (iii) all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate, and (iv) upon surrender in accordance with such redemption
notice of the Receipts evidencing any such Depositary Shares called for
redemption (properly endorsed or assigned for transfer, if the Depositary or
applicable law shall so require), such Depositary Shares shall be redeemed by
the Depositary at a redemption price per Depositary Share equal to one-_________
of the redemption price per share paid with respect to the Shares plus all money
and other property, if any, represented by such Depositary Shares, including all
amounts paid by the Trust in respect of dividends which on the Redemption Date
have accumulated on the Shares to be so redeemed and have not theretofore been
paid. The foregoing shall be subject further to the terms and conditions of the
Articles.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the close of business on the day
the Trust first publicly announces the redemption of Shares and ending at the
close of business on the day the Depositary mails the notices of redemption of
Depositary Shares or (b) to transfer or exchange for another Receipt any Receipt
evidencing Depositary Shares called or being called for redemption (except, in
the case of a redemption in part, the transfer or exchange of the unredeemed
portion of such Receipt).
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 the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
SECTION 2.09 EXCESS DEPOSITARY SHARES. Where Shares on
deposit with the Depositary are converted into Excess Shares under the terms of
the Trust's Declaration of Trust, as
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the same may be amended or supplemented from time to time (the "Declaration of
Trust"), a corresponding number of Depositary Shares shall be converted, without
any additional act on the part of the Trust, into a separate class of Depositary
Shares to be denominated "Excess Depositary Shares". The Depositary Shares so
converted shall be those owned by the person whose ownership of Shares in excess
of the Limit caused Shares on deposit to be converted into Excess Shares. In the
event of an ambiguity in determining which Depositary Shares have been converted
into Excess Depositary Shares, the Trust shall have the authority to make the
determination. Excess Depositary Shares shall be entitled only to those
distributions on or payments received with respect to (including the proceeds
from any redemption of) the corresponding Excess Shares held by the Depositary
and the holder of such Excess Depositary Shares shall not be entitled to
exercise voting rights in respect of such Excess Depositary Shares in excess of
the voting rights associated with the corresponding Excess Shares held by the
Depositary. For purposes of applying the provisions of Article 2, Section 7 of
the Declaration of Trust, the acquisition, holding, ownership or disposition of
Depositary Shares or Excess Depositary Shares shall be treated as the
acquisition, holding, ownership or disposition, as the case may be, of Shares or
Excess Shares and shall be subject to the provisions of Article 2, Section 7 of
the Declaration of Trust in the same manner as if the Depositary Shares or
Excess Depositary Shares were Shares or Excess Shares. Terms used but not
defined in this Section 2.09 are used herein as defined for purposes of Article
2, Section 7 of the Declaration of Trust.
Each person who is a beneficial owner or constructive owner of
Depositary Shares and each person (including the owner of record) who is holding
Depositary Shares for a beneficial or constructive owner shall provide to the
Trust such information as the Trust may in good faith request in connection with
determining the Trust's status as a real estate investment trust. The Depositary
hereby agrees to transmit written statements from the Trust requesting
information with respect to the direct, beneficial and constructive ownership of
Depositary Shares to the holders of Depositary Shares and to provide the Trust
with the responses received in connection with such requests. The Depositary
also hereby agrees to provide the Trust with a list of the record holders of the
Depositary Shares and such other information concerning the direct, beneficial
and constructive ownership of Depositary Shares as the Trust may reasonably
request.
Each Receipt shall bear the following legend:
"The Town and Country Trust (the "Trust") will furnish without
charge to each receipt holder who so requests a copy of the
Deposit Agreement and a statement or summary of the
Declaration of Trust establishing the powers, designations,
preferences and relative, participating, optional or other
specified rights of the ____% Preferred Shares and each other
class of preferred shares or series thereof or other shares
which the Trust is authorized to issue and of the
qualifications, limitations or restrictions of such
preferences and/or rights. Any such request should be
addressed to The Town and Country Trust, Suite 1700, 100 S.
Charles Street, Baltimore, Maryland 21201; Attention:
President.
This Receipt, the Depositary Shares and the Shares are
subject to restrictions on transfer for the purpose of the
Trust's maintenance of its status as a Real Estate Investment
Trust under the Internal Revenue Code of 1986, as amended (the
"Code"). With certain further restrictions and exceptions set
forth in the Declaration, no person may beneficially own
Depositary Shares, Shares and/or other shares of the Trust in
excess of 5.0% (or such greater percentage as may be
determined by the Board of Trustees of the Trust) of the
lesser of the number or value of the outstanding shares of
beneficial interest and Depositary Shares of the Trust (unless
such person specifically shall have been exempted by the Board
of Trustees). Any Receipt, Depositary Shares and/or Shares
held in excess of the above limitations may be
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subject to mandatory redemption in certain events and to
limitations on the associated rights to receive distributions
from the Trust or to exercise voting rights, and certain
purported acquisitions of Receipts, Depositary Shares and/or
Shares in excess of such limitations, or which would result in
the disqualification of the Trust as a Real Estate Investment
Trust under the Code, shall be void AB INITIO. All capitalized
terms in this legend have the meanings set forth in the
Declaration, a copy of which, including the restrictions on
transfer, will be sent without charge to each shareholder who
so requests."
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE TRUST
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER
INFORMATION. Except for the initial deposit of Shares by the Trust and any
subsequent deposit by the Trust, any holder of a Receipt may be required from
time to time to file such proof of residence, or other matters or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Trust may reasonably deem necessary or
proper. The Depositary or the Trust may withhold the delivery, or delay the
registration of transfer, redemption or exchange, of any Receipt or the
withdrawal or conversion of the Shares represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Shares and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends or other
distributions may be withheld or any part of or all the Shares or other property
represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTY AS TO SHARES. The Trust hereby
represents and warrants that the Shares, when issued, will be duly authorized,
validly issued, fully paid and nonassessable, free of preemptive rights and any
lien, claim or encumbrance, and entitled to the rights set forth in the
Articles. Such representation and warranty shall survive the deposit of the
Shares and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on Shares, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such dividend or distribution as are, as nearly as practicable, in
proportion to the
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respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; PROVIDED, HOWEVER, that in case the Trust or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Shares 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. In the event that the calculation of any such cash
dividend or other cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such holder results in an amount
which is a fraction of a cent, the amount the Depositary shall distribute to
such record holder shall be rounded to the next highest whole cent; and upon
request of the Depositary, the Trust shall pay the additional amount to the
Depositary for distribution.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS,
PREFERENCES OR PRIVILEGES. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon Shares, the
Depositary shall, subject to Sections 3.01 and 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 may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Trust or the Depositary withhold an amount
on account of taxes) the Depositary deems such distribution not to be feasible,
the Depositary may 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 Sections 3.01 and 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.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES.
If the Trust shall at any time offer or cause to be offered to the persons in
whose names Shares are recorded on the books of the Trust 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 Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Trust; PROVIDED, HOWEVER,
that (i) if at the time of issue or offer of any such rights, preferences or
privileges the Depositary determines that it is not lawful or (after
consultation with the Trust) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts who
do not desire to exercise such rights, preferences or privileges, then the
Depositary, in its discretion (with approval of the Trust, in any case where the
Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at a public or private sale and upon such terms as it
may deem proper. The net proceeds of any such sale shall, subject to Sections
3.01 and 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.
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 Trust will file promptly a registration
statement pursuant to such Act with respect to such rights, preferences or
privileges and
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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 it has
received written notice from the Trust that such registration statement shall
have become effective, or that the offering and sale of such securities to such
holders are exempt from registration under the provisions of the Securities Act
and the Trust shall have provided to the Depositary an opinion of counsel to
such effect.
If any other action under the laws 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 Trust will use its reasonable 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 DIVIDENDS, ETC.; FIXING RECORD DATE
FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
Shares, or whenever the Depositary shall receive notice of any meeting at which
holders of Shares are entitled to vote or of which holders of Shares are
entitled to notice, or whenever the Depositary and the Trust shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Trust with respect to or
otherwise in accordance with the terms of the Shares) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Shares are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of Receipts
a notice which shall contain (i) such information as is contained in such notice
of meeting and (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 number of Shares represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Trust)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole Shares represented by the Depositary Shares evidenced by
all Receipts as to which any particular voting instructions are received. The
Trust hereby agrees to take all reasonable action which may be deemed necessary
by the Depositary in order to enable the Depositary to vote such Shares or cause
such Shares to be voted. In the absence of specific instructions from the holder
of a Receipt, the Depositary will not vote (but, at its discretion, may appear
at any meeting with respect to such Shares unless directed to the contrary by
the holders of all the Receipts) to the extent of the Shares represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Shares, or upon any recapitalization, reorganization,
merger, consolidation, mandatory share exchange or other similar business
combination affecting
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the Trust or to which it is a party or sale of all or substantially all of the
Trust's assets, the Depositary may in its discretion with the approval of, and
shall upon the instructions of, the Trust, and (in either case) in such manner
as the Depositary may deem equitable, (i) make such adjustments as are certified
by the Trust in (a) the fraction of an interest represented by one Depositary
Share in one Share and (b) the ratio of the redemption price per Depositary
Share to the redemption price of a share, in each case as may be necessary fully
to reflect the effects of such change in par or stated value or liquidation
preference, split-up, combination or other reclassification of Shares, or of
such recapitalization, reorganization, merger, consolidation, share exchange,
business combination or sale and (ii) treat any securities which shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Shares as new deposited securities so received in exchange for or upon
conversion or in respect of such Shares. In any such case the Depositary, may in
its discretion, with the approval of the Trust, 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
securities. 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 or liquidation preference, split-up combination or other
reclassification of the Shares or any such recapitalization, reorganization,
merger, consolidation, share exchange, business combination or sale to surrender
such receipts to the Depositary with instructions to convert, exchange or
surrender the Shares 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 Shares represented by such Receipts might have been
converted or for which such Shares might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall
furnish to holders of Receipts any reports and communications received from the
Trust which are received by the Depositary as the holder of Shares.
SECTION 4.08. LIST OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Trust, the Depositary shall furnish to it a list, as of
the most recent practicable date, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts. The Trust shall be entitled
to receive such list twice annually without charge.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE TRUST
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER
BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement,
the Depositary shall maintain at the Depositary's office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books during
normal business hours shall be open for inspection by the record holders of
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
evidenced by the Receipts.
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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.
The Depositary may, with the approval of the Trust, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Shares represented by such Depositary Shares shall be listed on one or more
national stock exchanges, the Depositary will appoint a Registrar (acceptable to
the Trust) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Trust. If the Receipts, such Depositary Shares or
such Shares are listed on one or more other stock exchanges, the Depositary
will, at the request and at the expense of the Trust, arrange such facilities
for the delivery, registration, registration of transfer, surrender and exchange
of such Receipts, such Depositary Shares or such Shares as may be required by
law or applicable stock exchange regulation.
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 Trust of any such action.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, DEPOSITARY'S AGENT, THE REGISTRAR OR THE TRUST. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor the Trust 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 or any provision,
present or future, of the Trust's Amended and Restated Declaration of Trust or
by reason of any act of God or war or other circumstance beyond the reasonable
control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Trust shall be prevented, delayed or forbidden from, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary's Agent, the Registrar or the Trust
incur liability to any holder of a Receipt (i) by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement shall 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 this Deposit Agreement except, in the case of any such exercise
or failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. OBLIGATION OF THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE TRUST. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Trust assumes any obligation or shall be subject
to any liability under this Deposit Agreement or any Receipt to holders of
Receipts other than for its negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar shall be under obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Shares, the Depositary Shares
or the Receipts which in its 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 shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or
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accountants, or information from any person presenting Shares for deposit, any
holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent and
the Registrar may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Shares or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith. 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 Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Depositary or any Registrar. The Depositary will
indemnify the Trust and hold it harmless from any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted by the Depositary, including when such
Depositary acts as Registrar, or the Depositary's Agents in connection with this
Agreement due to its or their negligence, willful misconduct or bad faith.
The Depositary, its affiliates or subsidiaries, the
Depositary's Agents, and the Registrar may own, buy, sell and deal in any class
of securities of the Trust and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Trust 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, parent, affiliate or
subsidiary or Depositary's Agent or Registrar hereunder. The Depositary may also
act as trustee, transfer agent or registrar of any of the securities of the
Trust and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar, acting as the Depositary Agent or
Registrar, as the case may be, 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, any
Depositary's Agent and the Registrar are acting only in a ministerial capacity
as Depositary or Registrar for the Shares.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar 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 Shares, the Depositary Shares or the Receipts (except for its
countersignatures thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness
of the description that appears in the Receipts, which can be taken as a
statement of the Trust summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Shares at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares. The
Depositary shall not be accountable for the use or application by the Trust of
the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by delivering notice of its election to do so to the Trust,
such resignation to take effect upon the appointment of a successor Depositary
and its acceptance of such appointment as hereinafter provided.
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The Depositary may at any time be removed by the Trust 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 Trust 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 no successor Depositary shall have been so appointed and
have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent jurisdiction
for the appointment of a successor Depositary. Every successor Depositary shall
execute and deliver to its predecessor and to the Trust an instrument in writing
accepting its appointment hereunder and agreeing to become a party to this
Deposit Agreement, 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 Trust, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Shares and any moneys or property held hereunder to such
successor, and shall deliver to such successor a list of the record holders of
all outstanding Receipts and such records, books and other information in its
possession relating thereto. 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, or to which the Depositary may sell all or
substantially all of its trust business, shall be the successor of such
Depositary without the execution or filing of any document or any further act,
and notice thereof shall not be required hereunder. Such successor Depositary
may authenticate the Receipts in the name of the predecessor Depositary or in
the name of the successor Depositary.
If at any time the Depositary shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under any applicable Federal
or State bankruptcy or insolvency law or similar law, or make an assignment for
the benefit of its creditors or consent to the appointment of a receiver,
conservator or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or to meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of any applicable Federal or State
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Depositary or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Depositary, qualified
as set forth above, shall be appointed by the Trust by an instrument in writing,
filed wi
