QuickLinks
 -- Click here to rapidly navigate through this document

  




 
 

Exhibit 4.2    
  


  
 

    DEPOSIT AGREEMENT    
  


        This DEPOSIT AGREEMENT is made and entered into as of April 21, 2003 by and among NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation,
EQUISERVE TRUST COMPANY, N.A., a national banking association ("EquiServe Trust Company, N.A."), and EQUISERVE, INC., a Delaware corporation ("EquiServe, Inc."), and all holders from
time to time of Receipts (as hereinafter defined) issued hereunder. EquiServe Trust Company, N.A. and EquiServe, Inc. may be referred to individually and collectively herein as "Depositary." 


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 Articles of Amendment and Restatement of Articles of Incorporation, as the same may be amended and supplemented, of the Company,
as amended and supplemented from time to time. 


        SECTION
1.02. "Articles Supplementary" shall mean the Articles Supplementary Classifying 805,000 Shares of Preferred Stock as 7.625% Series E 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 New Plan 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. 


        SECTION
1.06. "Deposit Agreement" shall mean this agreement, as the same may be amended, modified or supplemented from time to time. 


2





 



        SECTION
1.07. "Depositary" shall mean EquiServe Trust Company, N.A. and EquiServe, Inc., in each case, a company or corporation having its principal office in the United States,
and any successor as depositary hereunder. 


        SECTION
1.08. "Depositary Share" shall mean a 1/10 fractional interest 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 dividend and distribution, voting, redemption and liquidation rights contained in the Articles Supplementary. 


        SECTION
1.09. "Depositary's Agent" shall mean one or more agents appointed by the Depositary as provided, and for the purposes specified, in Section 7.05. 


        SECTION
1.10. "EquiServe, Inc." shall mean EquiServe, Inc., a Delaware corporation, and any successor as depositary hereunder. 


        SECTION
1.11. "Ownership Limit" shall have the meaning set forth in Article VII of the Company's Articles of Incorporation. 



        SECTION
1.12. "Preferred Stock" shall mean shares of the Company's 7.625% Series E Cumulative Redeemable Preferred Stock, $.01 par value per share, heretofore validly issued,
fully paid and non-assessable. 


        SECTION
1.13. "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
1.14. "record date" shall mean the date fixed pursuant to Section 4.04. 



        SECTION
1.15. "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
1.16. "Registrar" shall mean EquiServe Trust Company, N.A., EquiServe, Inc. or any bank or trust company appointed to register ownership and transfers of Receipts or the
deposited Preferred Stock, as the case may be, as herein provided. 


        SECTION
1.17. "Securities Act" shall mean the Securities Act of 1933, as amended. 



        SECTION
1.18. "Transfer Agent" shall mean EquiServe Trust Company, N.A., EquiServe, Inc. or any bank or trust company appointed to transfer the Receipts or the deposited Preferred
Stock, as the case may be, 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 Receipts which may be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in
lieu of which they 


3





 


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 Company or required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange or interdealer quotation system upon which the
Preferred Stock, the Depositary Shares or the Receipts may be listed or quoted or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject, in each case, as directed by the Company. 


        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 dividends or other distributions, the exercise of any redemption or voting 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 800,000 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, including the resolutions of the Board of Directors of the Company,
as certified by the Secretary or any Assistant Secretary of the Company on the date hereof as being complete, accurate and in effect, relating to issuance and sale of the Preferred Stock,
(ii) an opinion letter of counsel to the Company containing customary opinions relating to (A) the existence and good standing of the Company, (B) the due authorization of the
Depositary Shares and the status of the Depositary Shares as validly issued, fully paid and non-assessable, and (C) the effectiveness of the registration 


4





 




statement under the Securities Act relating to the Depositary Shares, and (iii) a written letter of instruction 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 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 30 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 dividends thereon to and including the date fixed for 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 nor more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "redemption date"), to the record holders 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. No failure to give such notice or any defect thereto or in the mailing
thereof shall affect the sufficiency of notice or validity of the proceedings for redemption except as to a holder 


5





 




to whom notice was defective or not given. A redemption notice which has been mailed in the manner provided herein shall be conclusively presumed to have been duly given on the date mailed whether or
not the holder received the redemption notice. The Company shall provide the Depositary with such notice, and each such notice shall state: the redemption date; the redemption price and accrued and
unpaid dividends payable on the redemption date; 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 the Depositary Shares to be redeemed are to be surrendered for
payment of the redemption price and accrued and unpaid dividends payable on the redemption date; and that from and after the redemption date dividends in respect of the Preferred Stock represented by
the Depositary Shares to be redeemed will cease to accrue. If fewer than all of the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be redeemed pro rata
(as nearly as may be practicable without creating fractional Depositary Shares) or by any other equitable method determined by the Company that will not result in a violation of the Ownership Limit. 



        In
the event that notice of redemption has been made as described in the immediately preceding paragraph and the Company shall then have paid or caused to be paid in full to
EquiServe, Inc. the redemption price (determined pursuant to the Articles Supplementary) of the Preferred Stock deposited with EquiServe, Inc. to be redeemed (including any accrued and
unpaid dividends to and including the redemption date), 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 redemption date (unless the Company shall have failed to pay for 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 dividends 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 redemption price plus all accrued and unpaid dividends to and including the
redemption date) shall, to the extent of such Depositary Shares, cease and terminate. Upon surrender in accordance with said notice of the Receipts evidencing such Depositary Shares (properly endorsed
or assigned for transfer, if the Depositary or applicable law shall so require), such Depositary Shares shall be redeemed at a redemption price of $25.00 per Depositary Share plus all accrued and
unpaid dividends to and including the redemption date. The foregoing shall be further subject to the terms and conditions of the Articles Supplementary. In the event of any conflict between the
provisions of this Deposit Agreement and the provisions of the Articles Supplementary, the provisions of the Articles Supplementary will govern and the Company will instruct the Depositary
accordingly. 


        If
fewer than all of the Depositary Shares evidenced by a Receipt are called for redemption, EquiServe, Inc. will deliver to the holder of such Receipt upon its surrender to the
Depositary, together with payment of the redemption price for and all other amounts payable in respect of the Depositary Shares called for redemption, a new Receipt evidencing such holder's Depositary
Shares evidenced by such prior Receipt that are not called for redemption. 


        The
Company acknowledges that the bank accounts maintained by EquiServe, Inc. in connection with the performance of the services described herein will be in the name of
EquiServe, Inc. and that EquiServe, Inc. may receive investment earnings in connection with the investment at EquiServe, Inc.'s risk and for its benefit of funds held in those
accounts from time to time. 


        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, agent or representative, properly
endorsed or accompanied by a properly executed instrument of transfer or endorsement and 


6





 




including a guarantee of the signature thereon by a participant in a signature guarantee medallion program approved by the Securities Transfer Association (a "Signature Guarantee"), together with
evidence of the payment of any transfer taxes as may be required by applicable 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 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 a properly executed instrument of transfer or endorsement. 



        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 with a Signature Guarantee. 


        The
Depositary shall deliver the deposited Preferred Stock and EquiServe, Inc. shall deliver 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.    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 


7





 




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), including a Signature Guarantee; 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 applicable 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 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 and the provision of an open penalty surety bond, in each case, satisfactory to the Depositary and the
Company and holding the Depositary and the Company harmless. 


        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 and to execute such certificates 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 or such certificates are executed. 


        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 5.09, 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 


8





 




to any payment of such fees or expenses, the holder 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 non-assessable. 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 represented by such Depositary Share. Such representation and warranty shall survive the deposit of the Preferred Stock and the issuance of Receipts
evidencing the Depositary Shares. 


 
 

Article IV
  
    THE PREFERRED STOCK; NOTICES    



        Section 4.01.    Dividends and Other Cash Distributions.    Whenever EquiServe, Inc. shall receive any
dividend or other cash distributions on the deposited Preferred Stock, including any cash received upon redemption of any shares of Preferred Stock pursuant to Section 2.03,
EquiServe, Inc. 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
EquiServe, Inc. shall be required by law to withhold and shall withhold from any cash distribution in respect of the Preferred 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. EquiServe, Inc. 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 EquiServe, Inc. (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by EquiServe, Inc. 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 


9





 




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 in order to
be freely transferable. 


        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, the offering of such rights, preferences or privileges shall in each such instance be communicated to the Depositary and thereafter made
available by the Depositary to the record holders of Receipts in such manner as the Company shall instruct (including by the issue to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the time of issue or offer of any such rights, preferences or privileges the Company determines upon advice of its legal counsel
that it is not lawful or feasible to make such rights, preferences or privileges available to the holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, the Depositary shall then, if so instructed by the Company, and if applicable laws or the terms
of such rights, preferences or privileges so permit, sell such rights, preferences or privileges of such holders at public or private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Section 3.01 and Section 3.02, be distributed by EquiServe, Inc. 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 in order to be freely
transferable. 


        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 reasonable 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 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 Distributions; Fixing of Record Date for Holders of Receipts.    Whenever any dividend or
other cash distributions 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 


10





 




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, if any, fixed by the Company with respect to the Preferred Stock) for
the determination of the holders of Receipts (a) who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof,
(b) 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 (c) 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 may be given. Upon the written request of a holder of a Receipt on such
record date, the Depositary shall vote or cause to be voted the amount of Preferred 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 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 preference, split-up, combination or other reclassification of stock, or of such recapitalization, reorganization, merger, amalgamation, 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 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 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, 


11





 




merger, amalgamation or consolidation or sale of substantially all the assets of the Company to surrender such Receipts to the Depositary with instructions to 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 which such Preferred Stock might have been exchanged
or surrendered immediately prior to the effective date of such transaction, subject to any subsequent change in par or stated value, split-up, combination or other reclassification or any
subsequent recapitalization, reorganization, merger, amalgamation or consolidation or sale of substantially all the assets. 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.    EquiServe, Inc. shall be responsible for
(i) preparing and mailing of Form 1099s for all open and closed accounts, (ii) all applicable withholding related to payments made with respect to the Receipts, including, without
limitation, withholding required pursuant to Sections 1441, 1442, 1445 and 3406 of the Internal Revenue Code of 1986, as amended, (iii) mailing Form W-9s to new holders of
Receipts without a certified taxpayer identification number, (iv) processing certified Form W-9s, (v) preparing and filing of state information returns and
(vi) providing escheatment services. 


        SECTION
4.10.    Withholding.    Notwithstanding any other provision of this Deposit Agreement to the contrary, in the
event that the Depositary determines that any distribution in property is subject to any tax which the Depositary is obligated by applicable 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; provided, however, that in the event the Depositary determines that such distribution of property is subject to withholding tax only with respect to some but not all holders of Receipts,
the Depositary will use its best efforts (i) to sell only that portion of such property distributable to such holders that is required to generate sufficient proceeds to pay such withholding
tax and (ii) to effect any such sale in such a manner so as to avoid affecting the rights of any other holders of Receipts to receive such distribution in property. 


 
 

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 


12





 


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. The Depositary may maintain such books in customary electronic form. 


        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, or quoted on any interdealer quotation system, 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 stock exchange or quotation system. 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 or quotation systems, 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 applicable law or
applicable stock exchange or quotation system regulations. 


        SECTION
5.02.    Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the
Company.    None of the Depositary, any Depositary's Agent, any Registrar or 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 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.    Each of the
Depositary, any Depositary's Agent and any Registrar shall at all times act in good faith and shall use its best efforts within reasonable time limits to insure the accuracy of all services performed
pursuant to this Agreement. None of the Depositary, any Depositary's Agent, any Registrar or 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. 


        None
of the Depositary, any Depositary's Agent, any Registrar or 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 


13





 




in expense or liability, unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. 



        None
of the Depositary, any Depositary's Agent, any Registrar or 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 advice or 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. 



        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 represents that it has registered the deposited Preferred Stock and the Depositary Shares for sale in accordance with 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. 


14





 



        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 or interdealer quotation system upon which the Preferred Stock, the Depositary Shares or the Receipts
are listed or quoted 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 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 or bad faith on the part of any such person or persons. The obligations of the Company set 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.    Indemnification by the Depositary.    The Depositary agrees to indemnify the Company against, and
hold the Company harmless from, any liability, costs and expenses (including reasonable attorneys' fees) that may arise out of, or in connection with, the refusal or failure of any of the Depositary,
any Depositary's Agent or the Registrar to comply with the terms of this Deposit Agreement, or which arise out of the willful misconduct, gross negligence, negligence or bad faith on 


15





 




the part of any such person or persons; provided, however, that the Depositary's aggregate liability hereunder with respect to, arising from, or arising in connection with this Deposit Agreement, or
from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the
Company to the Depositary as fees and charges under this Agreement or otherwise, but not including reimbursable expenses, during the six (6) calendar months immediately preceding the event for
which recovery from the Depositary is being sought. The obligations of the Depositary set forth in this Section 5.07 shall survive any succession of the Company or termination of this Deposit
Agreement. 


        SECTION
5.08.    Damages.    The Depositary shall not be liable for any incidental, indirect, special or consequential
damages of any nature whatsoever, including, but not limited to, loss of anticipated profits (collectively, "Special Damages"), occasioned by breach of any provision of this Agreement by the
Depositary even if apprised of the possibility of such damages. The Company shall not be liable to the Depositary for Special Damages occasioned by breach of any provision of this Agreement by the
Company even if apprised of the possibility of such damages. 


        SECTION
5.09.    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 5.09. 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 Receipts, in each case, in the amount and
manner set forth in that certain Transfer Agency and Service Agreement, dated as of October 1, 2002, by and between the Company and the Depositary (as the same may be amended, modified,
supplemented or replaced from time to time by the parties, the "Transfer Agency and Service Agreement"). 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. Upon approval of such cost by such holder, such holder will
thereafter 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 by the Company pursuant to the terms of Transfer Agency and Service
Agreement (or, if such agreement is no longer in effect, pursuant to such terms as the Company and the Depositary shall agree in good faith, which terms shall be at least as favorable to the
Depositary as those contained in such agreement as last in effect). 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 that are payable by the Company) 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 Receipts evidencing at least 662/3 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 


16





 


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 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 Receipts evidencing at least a majority of the Depositary Shares then outstanding 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 reasonable best efforts to list or quote the Preferred Stock issued
upon surrender of the Receipt evidencing the Depositary Shares represented thereby on a national securities exchange or interdealer
quotation system. 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, (i) 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 5.09 and (ii) the Depositary shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Company under 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. 


17





 



        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: 




NEW
PLAN EXCEL REALTY TRUST, INC.

1120 Avenue of the Americas

New York, New York 10036

Attention: Corporate Secretary

Telephone No.: (212) 869-3000 





or
at any other address of which the Company shall have notified the Depositary in writing. 



        Any
notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by
telegram or telex or telecopier confirmed by letter, addressed to the Depositary at the Corporate Office to the attention of the General Counsel. 


        Any
notices given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by
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. 


18





 



        IN
WITNESS WHEREOF, New Plan Excel Realty Trust, Inc., EquiServe Trust Company, N.A. and EquiServe, Inc. have caused this Deposit Agreement to be duly executed on their
behalf as of the day and year first above set forth and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms
hereof. 



	 	 	NEW PLAN EXCEL REALTY TRUST, INC.
	

 	
 	

By:	
 	

 Name: Steven F. Siegel

Title: Executive Vice President
	

 	
 	

EQUISERVE TRUST COMPANY, N.A.
	

 	
 	

By:	
 	

 Name:

Title:
	

 	
 	

EQUISERVE, INC.
	

 	
 	

By:	
 	

 Name:

Title:




19






EXHIBIT A

Form of Receipt 





 


[NEW PLAN 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. The charter of New Plan Excel Realty Trust, Inc. generally prohibits any person from acquiring or holding, beneficially or
constructively, shares of its preferred and common stock in excess of 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding shares of each class or series of its
stock. Its Board of Directors may exempt a person from this ownership limit under specified conditions. Absent an exemption or a waiver, shares of stock that are purportedly transferred in excess of
the ownership limit will be void ab initio and will be automatically transferred to a trust for the exclusive benefit of one or more charitable
beneficiaries, and the purported transferee will not acquire any rights in such shares. 


DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING 1/10 OF A SHARE OF 7.625% SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK

OF

NEW PLAN EXCEL REALTY TRUST, INC.

INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND 


DEPOSITARY
SHARES 


THIS
DEPOSITARY RECEIPT IS TRANSFERABLE

IN CANTON, MA OR NEW YORK, NY 


SEE
REVERSE FOR CERTAIN DEFINITIONS 


CUSIP
648053 80 9 


EQUISERVE
TRUST COMPANY, N.A. and EQUISERVE, Inc., as Depositary (individually and collectively, the "Depositary"), hereby certifies that EquiServe Trust Company, N.A. is the registered owner
of 8,000,000 Depositary Shares ("Depositary Shares"), each Depositary Share representing 1/10 of one share of 7.625% Series E Cumulative Redeemable Preferred Stock (the "Stock"),
of New Plan 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 April 21, 2003 (the "Deposit Agreement"), among 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 1120 Avenue of the Americas, New
York, New York 10036, Attention: Secretary. 


A-1





 



        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

EquiServe Trust Company, N.A.

Depositary, Transfer Agent and Registrar

By:
	 	 	
 AUTHORIZED OFFICER






A-2





 
 
 

NEW PLAN 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 APRIL 21, 2008, 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 EVIDENCING THE DEPOSITARY SHARES) 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 GENERALLY NO PERSON MAY ACQUIRE OR HOLD,
BENEFICIALLY OR CONSTRUCTIVELY, SHARES OF COMMON STOCK AND/OR PREFERRED STOCK (INCLUDING THE STOCK) IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF EACH CLASS OR
SERIES OF THE CORPORATION'S STOCK; AND (B) THAT ABSENT AN EXEMPTION OR WAIVER BY THE
CORPORATION'S BOARD OF DIRECTORS, SHARES OF STOCK THAT ARE PURPORTEDLY TRANSFERRED IN EXCESS OF THE OWNERSHIP LIMIT WILL BE VOID AB INITIO AND WILL BE
AUTOMATICALLY TRANSFERRED TO A TRUST FOR THE EXCLUSIVE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES, AND THE PURPORTED TRANSFEREE WILL NOT ACQUIRE ANY RIGHTS IN SUCH SHARES. 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 April 21, 2003 (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 30 days' prior written 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, including the amount, if any, of accrued and unpaid dividends thereon to and including the date fixed for redemption. The
Depositary shall mail, first-class postage prepaid, notice of the redemption of 


A-3





 




Stock and the proposed simultaneous redemption of the Depositary Shares representing the Stock to be redeemed, not less than 30 nor 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. 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.
If fewer than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall be determined pro rata or by any other equitable method determined by the Company
that will not result in a violation of the Ownership Limit. 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 represented by the Depositary Shares called for redemption), all 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 plus all accrued and unpaid dividends to and including the redemption date) 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 accrued and unpaid dividends to and including the redemption date on the shares of Stock to be so redeemed. The foregoing is
further subject to the terms and conditions of the Articles Supplementary. 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.    The holder hereof may withdraw any or all of the
deposited Stock represented by the Depositary Shares evidenced hereby and all money and other property, if any, represented by such Depositary Shares by surrendering this Depositary Receipt at the
corporate office or at such other office as the Depositary may designate for such withdrawals. After such surrender, without unreasonable delay, the Depositary shall deliver to the holder hereof, or
to the person or persons designated by the holder hereof in accordance with the Deposit Agreement, the number of whole or fractional shares of such Stock and all such money and other property, if any,
represented by the Depositary Shares evidenced by this Depositary Receipt surrendered for withdrawal, but the holder of such whole or fractional shares of Stock shall not thereafter be entitled to
deposit such Stock under the Deposit Agreement or to receive Depositary Shares therefor. However, if this Depositary Receipt evidences a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of deposited Stock to be withdrawn, the Depositary shall at the same time, in addition to such number of whole or fractional
shares of Stock and such money and other property, if any, to be withdrawn, deliver to such holder a new Depositary Receipt or Depositary Receipts evidencing such excess number of 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 or endorsement,
and upon such transfer the Depositary shall sign and deliver a Depositary 


A-4





 




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
regulations, if any, as the Depositary or the Company may establish consistent 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, split-up, combination, surrender, exchange or
redemption 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 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 applicable 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 or Transfer Agent payable by the Company) which (i) shall materially and adversely alter the rights of holders of Depositary Receipts or
(ii) would be materially and adversely inconsistent with the rights granted to the holders of the Stock pursuant to the Articles Supplementary shall be effective unless such amendment shall
have been approved by the holders of Depositary Receipts evidencing 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 consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the holder of Depositary Shares to surrender this Depositary Receipt evidencing the Depositary Shares 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. 


A-5





 



        11.    DIVIDENDS AND DISTRIBUTIONS.    Whenever the Depositary shall receive any dividend or other cash distributions
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 dividend or other distributions
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, if any, 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 (z) 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 


A-6





 




reasonable times will be open for inspection by the record holders of Depositary Receipts as provided by applicable law. 


        16.    LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY.    None of the Depositary,
any Depositary's Agent, the Registrar or 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 the United States of America or of any governmental authority or, in the case of the Depositary, any 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, any Depositary's Agent or the Registrar, 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.    None of the
Depositary, any Depositary's Agent, the Registrar or 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. None of the Depositary, any Depositary's Agent, the Registrar or 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 reasonably satisfactory to it against all expense and liability be furnished as often as may be required. None of the Depositary, any Depositary's Agent, the
Registrar or 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 any 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 Depositary Receipts 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,
(i) the Company shall be discharged from all obligations thereunder except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Sections 5.06 and 5.09 of the
Deposit Agreement and (ii) the Depositary shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Company under Section 5.07 of the Deposit
Agreement. 


        19.    GOVERNING LAW.    The Deposit Agreement and this Depositary Receipt and all rights thereunder and hereunder and
provisions hereof and thereof 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. 


A-7





 



        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. 


A-8





 



__________________________________________

AMERICAN BANK NOTE COMPANY April [    ], 2003 fm

3504 ATLANTIC AVENUE

SUITE 12

LONG BEACH, CA 90807            054595bk

(562) 989-2333

(FAX) (562) 426-7450

______________________________________ 


A-9









QuickLinks



Exhibit 4.2


DEPOSIT AGREEMENT

Article I DEFINITIONS

Article II FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS

Article III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY

Article IV THE PREFERRED STOCK; NOTICES

Article V THE DEPOSITARY AND THE COMPANY

Article VI AMENDMENT AND TERMINATION

Article VII MISCELLANEOUS

NEW PLAN EXCEL REALTY TRUST, INC.