THIRD
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
VININGS INVESTMENT PROPERTIES TRUST
INDEX
Page
----
ARTICLE I - THE TRUST; DEFINITIONS................................................................................1
1.1 Name............................................................................................1
1.2 Place of Business...............................................................................1
1.3 Nature of Trust.................................................................................2
1.4 Purpose of the Trust............................................................................2
1.5 Definitions.....................................................................................2
ARTICLE II - INVESTMENT POLICY....................................................................................5
2.1 General Statement of Policy.....................................................................5
2.2 Additional Investments..........................................................................5
ARTICLE III - TRUSTEES............................................................................................6
3.1 Number, Term of Office, Qualifications of Trustees..............................................6
3.2 Compensation and Other Remuneration.............................................................6
3.3 Resignation, Removal and Death of Trustees......................................................6
3.4 Vacancies.......................................................................................7
3.5 Successor and Additional Trustees...............................................................7
3.6 Actions by Trustees.............................................................................7
3.7 Unaffiliated Trustees...........................................................................8
3.8 Committees......................................................................................8
ARTICLE IV - TRUSTEES'POWERS......................................................................................9
4.1 Power and Authority of Trustees.................................................................9
4.2 Specific Powers and Authorities.................................................................9
4.3 By-Laws........................................................................................14
ARTICLE V - AGENTS...............................................................................................14
5.1 Employment of Employees, Agents, etc...........................................................14
ARTICLE VI - SHARES AND SHAREHOLDERS.............................................................................14
6.1 Shares.........................................................................................14
6.2 Legal Ownership of Trust Estate................................................................15
6.3 Shares Deemed Personal Property................................................................16
6.4 Share Record, Issuance and Transferability of Shares...........................................16
6.5 Dividends and Distributions to Shareholders....................................................17
6.6 Transfer Agent, Dividend Disbursing Agent and Registrar........................................17
6.7 Shareholders'Meetings and Consents.............................................................17
6.8 Proxies........................................................................................18
6.9 Reports to Shareholders........................................................................18
6.10 Fixing Record Date.............................................................................18
6.11 Notice to Shareholders.........................................................................18
6.12 Shareholders'Disclosure; Trustees'Right to Refuse to Transfer Shares; Limitation on Holdings;
Redemption of Shares 18
6.13 Inspection by Shareholders.....................................................................21
ARTICLE VII - LIABILITY OF TRUSTEES, SHAREHOLDERSAND OFFICERS, AND OTHER MATTERS.................................21
7.1 Limitation of Liability of Trustees and Officers...............................................21
7.2 Limitation of Liability of Shareholders, Trustees and Officers.................................21
7.3 Express Exculpatory Clauses in Instruments.....................................................21
7.4 Indemnification and Reimbursement of Trustees and Officers.....................................22
7.5 Right of Trustees and Officers to Own Shares or Other Property and to Engage in Other Business.22
7.6 Transactions with Affiliates...................................................................23
7.7 Persons Dealing With Trustees or Officers......................................................23
7.8 Reliance.......................................................................................24
ARTICLE VIII - DURATION, TERMINATION, AMENDMENT AND REORGANIZATION OF TRUST......................................24
8.1 Duration of Trust..............................................................................24
8.3 Merger, etc....................................................................................25
8.4 Amendment Procedure............................................................................25
ARTICLE IX - MISCELLANEOUS.......................................................................................26
9.1 Applicable Law.................................................................................26
9.2 Filing of Copies; References; Headings.........................................................26
9.3 Provisions of the Trust in Conflict With Law or Regulations....................................26
9.4 Binding Effect; Successors in Interest.........................................................28
Signatures and Acknowledgments...................................................................................__
THIRD
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
VININGS INVESTMENT PROPERTIES TRUST
THE SECOND AMENDED AND RESTATED DECLARATION OF TRUST of VININGS INVESTMENT
PROPERTIES TRUST (formerly known as Mellon Participating Mortgage Trust, Series
85/10) dated as of the 6th day of February, 1985, and previously amended on
March 13, 1996 and June 25, 1996, is hereby amended and restated, effective
_____________, 1999 by the undersigned Trustees, who constitute all the Trustees
of Vinings Investment Properties Trust, to make the amendments as set forth in
the following Third Amended and Restated Declaration of Trust:
ARTICLE I - THE TRUST; DEFINITIONS
----------------------------------
1.1 NAME. The Trust created by this Declaration of Trust is herein referred
to as the "Trust" and shall be known by the name "Vinings Investment Properties
Trust." So far as may be practicable, legal and convenient, the affairs of the
Trust shall be conducted and transacted under that name, which name shall not
refer to the Trustees individually or personally or to the beneficiaries or
Shareholders of the Trust, or to any officers, employees or agents of the Trust.
Under circumstances in which the Trustees determine that the use of the
name "Vinings Investment Properties Trust" is not practicable, legal or
convenient, they may as appropriate use and adopt another name under which the
Trust may hold property or operate in any jurisdiction. Legal title to all the
properties subject from time to time to this Declaration of Trust shall be
transferred to, vested and held by the Trustees as joint tenants with right of
survivorship as Trustees of this Trust; provided that the Trustees shall have
the power to cause legal title to any property of the Trust to be held by and/or
in the name of one or more of the Trustees, or any other Person as nominee, on
such terms, in such manner, and with such powers as the Trustees may determine;
and further provided that the Trustees shall have the power to cause any
property of the Trust to be held in the custody of (i) any bank and that such
bank may hold the property of the Trust in the name of any nominee, partnership
or nontaxable corporation, and (ii) any depository system for the central
handling of Securities.
1.2 PLACE OF BUSINESS. The Trust shall maintain an office, and shall
designate a resident agent for the service of process (whose name and address
shall be reported from time to time to the Secretary of the Commonwealth of
Massachusetts), in Atlanta, Georgia. The Trust may have such other offices or
places of business within or without the Commonwealth of Massachusetts as the
Trustees may from time to time determine.
1.3 Nature of Trust. The Trust is a trust or voluntary association of the
type referred to in Section 1 of Chapter 182 of the General Laws of the
Commonwealth of Massachusetts and commonly known as a business trust. It is
intended that the Trust elect to carry on business as a real estate investment
trust as described in the REIT Provisions of the Internal Revenue Code as long
as it is deemed by the Trustees to be in the best interest of the Shareholders
to make such election. The Trust is not intended to be, shall not be deemed to
be, and shall not be treated as, a general partnership, limited partnership,
joint venture, corporation, or joint stock company or association (but nothing
herein shall preclude the Trust from being taxable as an association under the
REIT Provisions of the Internal Revenue Code) nor shall the Trustees or
Shareholders or any of them for any purpose be deemed to be or be treated in any
way whatsoever to be, liable or responsible hereunder as partners or joint
venturers or as agents of one another. The relationship of the Shareholders to
the Trustees shall be solely that of beneficiaries of the Trust and their rights
shall be limited to those conferred upon them by this Declaration.
1.4 PURPOSE OF THE TRUST. The purpose of the Trust is to purchase, hold,
lease, manage, sell, exchange, develop, subdivide, joint venture, mortgage,
finance and improve real property and interests in real property, including
notes, bonds and other obligations secured by mortgages or deeds of trust on
real property, and in general to carry on any other acts in connection with or
arising out of the foregoing and to have and exercise all powers that are
available to voluntary associations formed under the laws of the Commonwealth of
Massachusetts and to do any or all of the things herein set forth to the same
extent as natural persons might or could do.
1.5 DEFINITIONS. The terms defined in this Section 1.5 whenever used in
this Declaration shall, unless the context otherwise requires, have the
respective meanings hereinafter specified in this Section 1.5. In this
Declaration, words in the singular number include the plural and in the plural
number include the singular.
1.5.1 AFFILIATED PERSON. An "Affiliated Person" of another Person
shall mean any Person who owns beneficially, directly or indirectly, 1% or
more of the outstanding capital stock, shares or equity interests of such
other Person or of any other Person which controls, is controlled by or is
under common control with such other Person or who is an officer, director,
employee, partner or trustee (excluding Unaffiliated Trustees not otherwise
affiliated with the entity) of such Person or of any other Person which
controls, is controlled by or is under common control with such Person.
1.5.2 ANNUAL MEETING OF SHAREHOLDERS. "Annual Meeting of Shareholders"
shall mean the meeting referred to in the first sentence of Section 6.7.
1.5.3 ANNUAL REPORT. "Annual Report" shall mean the Report referred to
in Section 6.9.
1.5.4 BY-LAWS. "By-Laws" shall mean the By-Laws referred to in Section
4.3.
1.5.5 DECLARATION. "Declaration" shall mean this Third Amended and
Restated Declaration of Trust of Vinings Investment Properties Trust and
all amendments or modifications hereof.
1.5.6 FIRST MORTGAGE. "First Mortgage" shall mean a Mortgage which
takes priority or precedence over all other charges or liens upon the same
Real Property, other than a lessee's interest therein, and which must be
satisfied before such other charges are entitled to participate in the
proceeds of any sale. Such Mortgage may be upon a lessee's interest in Real
Property. Such priority shall not be deemed abrogated by liens for taxes,
assessments which are not delinquent or remain payable without penalty,
contracts (other than contracts for repayment of borrowed moneys) or
leases, mechanics' and materialmen's liens for work performed and materials
furnished which are not in default or are in good faith being contested,
and other claims normally deemed in the local jurisdiction not to abrogate
the priority of a First Mortgage.
1.5.7 LAND PURCHASE-LEASEBACK. "Land Purchase-Leaseback" shall mean a
transaction involving the purchase of the land on which improvements are or
are to be constructed, and the lease, generally to the seller, of the land
pursuant to a land or ground lease.
1.5.8 LIMIT. "Limit" shall mean the number of Shares described in
Section 6.12.3.
1.5.9 MORTGAGE. "Mortgage" shall mean the security interest in Real
Property granted to secure a Mortgage Loan.
1.5.10 MORTGAGE LOAN. "Mortgage Loan" shall mean a note, bond or other
evidence of indebtedness or obligation which is secured or collateralized
by an interest in Real Property.
1.5.11 PERSON. "Person" shall include individuals, corporations,
limited partnerships, general partnerships, limited liability companies,
joint stock companies or associations, joint ventures, associations,
consortia, companies, trusts, banks, trust companies, land trusts, common
law trusts, business trusts, or other entities and governments and agencies
and political subdivisions thereof.
1.5.12 REAL ESTATE INVESTMENT. "Real Estate Investment" shall mean any
direct or indirect investment in any interest in Real Property (including
Land Purchase- Leaseback transactions) or in any Mortgage Loan, or in any
entity, partnership or venture whose principal purpose is to make any such
investment or investments.
1.5.13 REAL ESTATE INVESTMENT TRUST. "Real Estate Investment Trust"
and "REIT" shall mean a real estate investment trust as defined in the REIT
Provisions of the Internal Revenue Code, at such time as it is the policy
of the Trust (or, if applicable to a Person other than this Trust, then of
such other Person) to obtain the favorable federal income tax benefits
available to a qualified real estate investment trust.
1.5.14 REAL PROPERTY. "Real Property" shall mean and include land,
rights and interests in land, leasehold interests (including but not
limited to interests of a lessor or lessee therein), and any buildings,
structures, improvements, fixtures and equipment located on or to be
located on or used or to be used in connection with land, leasehold
interests and rights in land or interests in land, but does not include
Mortgages, Mortgage Loans, or interests therein.
1.5.15 REIT. Provisions of the Internal Revenue Code. "REIT Provisions
of the Internal Revenue Code" shall mean Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended, and any successor or other
provisions of the Code relating to real estate investment trusts (including
provisions as to the attribution of ownership of beneficial interests
therein) and the regulations promulgated thereunder.
1.5.16 SECURITIES. "Securities" shall mean any stock, shares, voting
trust certificates, bonds, debentures, notes or other evidences of
indebtedness or ownership or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for, receipts for, guarantees of, or
warrants, options or rights to subscribe, to purchase or acquire any of the
foregoing.
1.5.17 SHARES. "Shares" shall mean the shares of beneficial interest
in the Trust as described in Section 6.1. "Excess Shares" shall mean Shares
described as such in Section 6.12.3.
1.5.18 SHAREHOLDERS. "Shareholders" shall mean as of any particular
time the holders of record of outstanding Shares at such time.
1.5.19 TRUST. "Trust" shall mean the trust created by this
Declaration.
1.5.20 TRUSTEES. "Trustees" shall mean, as of any particular time,
Trustees holding office under this Declaration at such time, whether they
be the Trustees named herein or additional or successor Trustees, and shall
not include the officers, representatives or agents of the Trust or the
Shareholders; but nothing herein shall be deemed to preclude the Trustees
from also serving as officers, representatives or agents of the Trust or
owning Shares.
1.5.21 TRUST ESTATE. "Trust Estate" shall mean as of any particular
time any and all property, real, personal or otherwise, tangible or
intangible, transferred, conveyed or paid to the Trust or the Trustees in
their capacity as Trustees, and all rents, income, profits and gains
therefrom which at such time is owned or held by the Trust or the Trustees
in their capacity as Trustees.
1.5.22 UNAFFILIATED TRUSTEE. "Unaffiliated Trustee" shall mean a
Trustee who (i) is not an officer or employee of the Trust or any
Affiliated Person of the Trust, and (ii) who performs no services for the
Trust or any Affiliated Person of the Trust except in his capacity as a
Trustee. If a member of a Trustee's immediate family could not be an
Unaffiliated Trustee, such Trustee shall not be considered an Unaffiliated
Trustee.
1.5.23 VALUATION. "Valuation" shall mean a determination, by the
Trustees or by a Person having no economic interest in such Real Property,
who in the sole judgment of the Trustees is properly qualified to make such
a determination, of the market value, as of the date of the valuation, of
Real Property in its existing state or in a state to be created.
ARTICLE II - INVESTMENT POLICY
------------------------------
2.1 GENERAL STATEMENT OF POLICY. It is the general policy of the Trust that
the Trustees invest the Trust Estate principally in investments which will
conserve and protect the Trust's invested capital, produce cash distributions,
and offer the potential for capital appreciation to be realized upon the sale,
refinancing or other disposition of such investments. To achieve this objective
the Trustees intend to invest the assets of the Trust in multifamily apartment
properties and other real estate properties and investments which offer the
potential to achieve such objective. The consideration paid for Real Property
acquired by the Trust shall ordinarily be based on the fair market value of the
property as determined by a majority of the Trustees. In cases where a majority
of the Unaffiliated Trustees so determine, such fair market value shall be as
determined by a qualified independent real estate appraiser selected by the
Trustees, including a majority of the Unaffiliated Trustees. The Trustees,
including a majority of the Unaffiliated Trustees, shall at least annually
review the investment policies of the Trust to determine that the policies being
followed by the Trust are in the best interests of the Shareholders, and each
such determination and the basis therefor shall be set forth in the minutes of
meetings of the Trustees.
2.2 ADDITIONAL INVESTMENTS. To the extent that the Trust has assets not
otherwise invested in accordance with Section 2.1, the Trustees may invest such
assets in:
2.2.1 Obligations of or guaranteed or insured by the United States
Government or any agencies or political subdivisions thereof;
2.2.2 Obligations of or guaranteed by any state, territory or
possession of the United States of America or any agencies or political
subdivisions thereof;
2.2.3 Evidences of deposits in, or obligations of, banking
institutions, state and federal savings and loan associations and savings
institutions which are members of the Federal Deposit Insurance Corporation
or of the Federal Home Loan Bank System, or shares in money market funds
(whether or not insured);
2.2.4 Shares of other REITs, to the extent permitted by the REIT
Provisions of the Internal Revenue Code; or
2.2.5 Other Securities and property to the extent not inconsistent
with the REIT Provisions of the Internal Revenue Code.
ARTICLE III - TRUSTEES
----------------------
3.1 NUMBER, TERM OF OFFICE, QUALIFICATIONS OF TRUSTEES. There shall be no
fewer than 3 nor more than 9 Trustees, at least a majority of whom shall be
Unaffiliated Trustees. The Trustees from time to time may fix the number of
Trustees within the range established in the Declaration of Trust and may change
the range in the authorized number of Trustees, provided that the lower end of
the authorized range shall not be fewer than three. Subject to the provisions of
Section 3.3, each Trustee shall hold office for a term of one year or until the
election and qualification of his successor. At each Annual Meeting of
Shareholders, the Shareholders shall elect successors to the Trustees, unless
the number of Trustees is then being reduced. There shall be no cumulative
voting in the election of Trustees. Trustees may be re-elected without limit as
to the number of times. A Trustee shall be an individual at least 21 years of
age. Unless otherwise required by law or by action of the Trustees, no Trustee
shall be required to give bond, surety or security in any jurisdiction for the
performance of any duties or obligations hereunder. The Trustees in their
capacity as Trustees shall not be required to devote their entire time to the
business and affairs of the Trust.
3.2 COMPENSATION AND OTHER REMUNERATION. The Trustees (other than the
Unaffiliated Trustees) shall be entitled to receive such reasonable compensation
for their services as Trustees as they may determine from time to time. The
Trustees shall also be entitled to receive, directly or indirectly, remuneration
for services rendered to the Trust in any other capacity, including, without
limitation, services as an officer of or consultant to the Trust, legal,
accounting or other professional services, or services as a transfer agent, or
underwriter, or otherwise. The Trustees shall be reimbursed for their reasonable
expenses incurred in connection with their services as Trustees.
3.3 RESIGNATION, REMOVAL AND DEATH OF TRUSTEES. A Trustee may resign at any
time by giving written notice to the remaining Trustees at the principal offices
of the Trust. Such resignation shall take effect on the date such notice is
given or at any later time specified in the notice without need for prior
accounting. A Trustee may be removed at any time with or without cause by vote
or written consent of holders of a majority of the outstanding Shares entitled
to vote thereon or with cause by all remaining Trustees. For purposes of the
immediately preceding sentence "cause" shall include physical and/or mental
inability, due to a condition or illness which is expected to be of permanent or
indefinite duration, to perform the duties of a Trustee. A Trustee may be
removed at a special meeting of Shareholders. Upon the resignation or removal of
any Trustee, or his otherwise ceasing to be a Trustee, he shall execute and
deliver such documents as the remaining Trustees shall require for the
conveyance of any Trust property held in his name, shall account to the
remaining Trustee or Trustees as they require for all property which he holds as
Trustee and shall thereupon be discharged as Trustee. Upon the incapacity or
death of any Trustee, his legal representative shall perform the acts set forth
in the preceding sentence and the discharge mentioned therein shall run to such
legal representative and to the incapacitated Trustee or the estate of the
deceased Trustee as the case may be.
3.4 VACANCIES. If any or all of the Trustees cease to be Trustees
hereunder, whether by reason of resignations, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its continuity.
Until vacancies are filled, the remaining Trustee or Trustees (even though fewer
than three) may exercise the powers of the Trustees hereunder. Vacancies
(including vacancies created by increases in the number of Trustees) may be
filled for the unexpired term by the remaining Trustee or by a majority of the
remaining Trustees (which majority shall include a majority of the remaining
Trustees that are Unaffiliated Trustees if the vacant position was formerly held
by an Unaffiliated Trustee). If at any time there shall be no Trustees in
office, successor Trustees shall be elected by the Shareholders as provided in
Section 6.7.
3.5 SUCCESSOR AND ADDITIONAL TRUSTEES. The right, title, and interest of
the Trustees in and to the Trust Estate shall also vest in successor and
additional Trustees upon their qualification, and they shall thereupon have all
the rights and obligations of Trustees hereunder. Such right, title and interest
shall vest in the Trustees whether or not conveyancing documents have been
executed and delivered pursuant to Section 3.3 or otherwise. Appropriate written
evidence of the election and qualification of successor and additional Trustees
shall be filed with the records of the Trust and in such other offices or places
as the Trustees may deem necessary, appropriate or desirable. Upon the
resignation, removal or death of a Trustee, he (and in the event of his death,
his estate) shall automatically cease to have any right, title or interest in or
to any of the Trustee property, and the right, title and interest in such
Trustee in and to the Trust Estate shall vest automatically in the remaining
Trustees without any further act.
3.6 ACTIONS BY TRUSTEES. The Trustees may act with or without a meeting. A
quorum for all meetings of the Trustees shall be a majority of the Trustees.
Unless specifically provided otherwise in this Declaration, any action of the
Trustees may be taken at a meeting by vote of a majority of the Trustees present
at such meeting if a quorum is present, or without a meeting by written consent
of all of the Trustees. The decision of the Trust to invest in any Real Estate
Investment shall require the approval of a majority of the Unaffiliated
Trustees. Any agreement, deed, Mortgage, lease or other instrument or writing
executed by any one or more of the Trustees or by any one or more authorized
Persons shall be valid and binding upon the Trustees and upon the Trust when
authorized by action of the Trustees or as provided in the By-Laws, if the same
are adopted. Trustees and members of any committee of the Trustees may conduct
meetings by conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
An annual meeting of the Trustees shall be held at substantially the same
time as the Annual Meeting of Shareholders. Regular meetings, if any, shall be
held at such other times as shall be fixed by the Trustees. No notice shall be
required of an annual or a regular meeting of Trustees.
Special meetings of the Trustees shall be called by the Chairman or the
President upon the request of any two Trustees and may be called by the Chairman
or the President on his own motion, on not less than two days' notice to each
Trustee if the meeting is to be held in person, and/or not less than eight
hours' notice if the meeting is to be held by conference telephone or similar
equipment. Such notice, which need not state the purpose of the meeting, shall
be by oral, telegraphic, telephonic or written communication stating the time
and place therefor. Notice of any special meeting need not be given to any
Trustee entitled thereto who submits a written and signed waiver of notice,
either before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to him.
Regular or special meetings of the Trustees may be held within or without
the Commonwealth of Massachusetts, at such places as shall be designated by the
Trustees. The Trustees may adopt such rules and regulations for their conduct
and the management of the affairs of the Trust as they may deem proper and as
are not inconsistent with this Declaration.
3.7 UNAFFILIATED TRUSTEES. In order that a majority of the Trustees shall
be Unaffiliated Trustees, if at any time, by reason of one or more vacancies,
there shall not be such a majority, then within 120 days after such vacancy
occurs, the continuing Trustee or Trustees then in office shall appoint,
pursuant to Section 3.4, a sufficient number of other Persons who are
Unaffiliated Trustees, so that there shall be such a majority.
3.8 COMMITTEES. The Trustees may appoint from among their number an
executive committee and such other standing committees, including without
limitation investment, audit, nominating, and compensation committees, or
special committees as the Trustees determine. Each standing committee shall
consist of three or more members, a majority of whom shall be Unaffiliated
Trustees. Each committee shall have such powers, duties and obligations as may
be required by any governmental agency or other regulatory body or as the
Trustees may be deem necessary and appropriate. Without limiting the generality
of the foregoing, the executive committee shall have the power to conduct the
business and affairs of the Trust during periods between meetings of the
Trustees. The executive committee and other committees shall report their
activities periodically to the Trustees.
ARTICLE IV - TRUSTEES' POWERS
-----------------------------
4.1 POWER AND AUTHORITY OF TRUSTEES. The Trustees, subject only to the
specific limitations contained in this Declaration, shall have, without further
or other authorization, and free from any power of control on the part of the
Shareholders, full, absolute and exclusive power, control and authority over the
Trust Estate and over the business and affairs of the Trust to the same extent
as if the Trustees were the sole owners thereof in their own right, and to do
all such acts and things as in their sole judgment and discretion are necessary
or incidental to, or desirable for, the carrying out of any of the purposes of
the Trust or conducting the business or the Trust. Any determination made in
good faith by the Trustees of the purposes of the Trust or the existence of any
power or authority hereunder shall be conclusive. In construing the provisions
of this Declaration, presumption shall be in favor of the grant of powers and
authority to the Trustees. The enumeration of any specific power or authority
herein shall not be construed as limiting the general powers or authority or any
other specified power or authority conferred herein upon the Trustees.
4.2 SPECIFIC POWERS AND AUTHORITIES. Subject only to the express
limitations contained in this Declaration and in addition to any powers and
authorities conferred by this Declaration or which the Trustees may have by
virtue of any present or future statute or rule of law, the Trustees without any
action or consent by the Shareholders shall have and may exercise, at any time
and from time to time, the following powers and authorities which may or may not
be exercised by them in their sole judgment and discretion, and in such manner,
and upon such terms and conditions as they may, from time to time, deem proper:
4.2.1 To retain, invest and reinvest the capital or other funds of the
Trust and, for such consideration as they deem proper, to purchase or
otherwise acquire for cash or other property or through the issuance of
Shares or other Securities of the Trust and hold for investment real or
personal property of any kind, tangible or intangible, in entirety or in
participation, all without regard to whether any such property is
authorized by law for the investment of trust funds, and to possess and
exercise all the rights, powers and privileges appertaining to the
ownership of the Trust Estate with respect thereto.
4.2.2 To sell, rent, lease, hire, exchange, release, partition,
assign, mortgage, pledge, hypothecate, grant security interests in,
encumber, negotiate, convey, transfer or otherwise dispose of or grant
interests in all or any portion of the Trust Estate by deeds, financing
statements, security agreements and other instruments, trust deeds,
assignments, bills of sale, transfers, leases or Mortgages, for any of such
purposes.
4.2.3 To enter into leases, contracts, obligations, and other
agreements for a term extending beyond the term of office of the Trustees
and beyond the possible termination of the Trust or for a lesser term.
4.2.4 To borrow money and give negotiable or non-negotiable
instruments therefor; to guarantee, indemnify or act as surety with respect
to payment or performance of obligations of third parties; to enter into
other obligations on behalf of the Trust; and to assign, convey, transfer,
mortgage, subordinate, pledge, grant security interests in, encumber or
hypothecate the Trust Estate to secure any of the foregoing.
4.2.5 To lend money, whether secured or unsecured, to any Person,
including any Affiliated Person.
4.2.6 To create reserve funds for any purpose.
4.2.7 To incur and pay out of the Trust Estate any charges or
expenses, and disburse any funds of the Trust, which charges, expenses or
disbursements are, in the opinion of the Trustees, necessary or incidental
to or desirable for the carrying out of any of the purposes of the Trust or
conducting the business of the Trust, including, without limitation, taxes
and other governmental levies, charges and assessments, of whatever kind or
nature, imposed upon or against the Trustees in connection with the Trust
or the Trust Estate or upon or against the Trust Estate or any part
thereof, and for any of the purposes herein.
4.2.8 To deposit funds of the Trust in or with banks, trust companies,
savings and loan associations, money market organizations and other
depositories or issuers of depository-type accounts, whether or not such
deposits will draw interest or be insured, the same to be subject to
withdrawal or redemption on such terms and in such manner and by such
Person or Persons (including any one or more Trustees, officers, agents or
representatives) as the Trustees may determine.
4.2.9 To enter into hedging transactions to minimize the effect of
interest rate fluctuations on investments made pursuant to Section 2.2 of
this Declaration.
4.2.10 To possess and exercise all the rights, powers and privileges
appertaining to the ownership of all or any Mortgages or Securities issued
or created by, or interests in, any Person, forming part of the Trust
Estate, to the same extent that an individual might and, without limiting
the generality of the foregoing, to vote or give consent, request or
notice, or waive any notice, either in person or by proxy or power of
attorney, with or without power of substitution, to one or more Persons,
which proxies and powers of attorney may be for meetings or action
generally or for any particular meeting or action, and may include the
exercise of discretionary powers.
4.2.11 To cause to be organized or assist in organizing any Person
under the laws of any jurisdiction to acquire the Trust Estate or any part
or parts thereof or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, rent, lease, hire,
convey, negotiate, assign, exchange or transfer the Trust Estate or any
part of parts thereof to or with any such Person in exchange for the
Securities thereof or otherwise, and to lend money to, subscribe for the
Securities of, and enter into any contracts with, any such Person in which
the Trust holds or is about to acquire Securities or any other interest.
4.2.12 To enter into joint ventures, general or limited partnerships
and any other lawful combinations or associations.
4.2.13 To elect or appoint officers of the Trust (which shall include
a Chairman, who will be a Trustee, and a President, a Treasurer and a
Secretary, and which may include one or more Vice Presidents and other
officers as the trustees may determine, and none of whom needs be a
Trustee), who may be removed or discharged at the discretion of the
Trustees, such officers to have such powers and duties, and to serve such
terms, as may be prescribed by the Trustees or by the By-Laws of the Trust
or as may pertain to such officers; subject to the provisions of Section
7.5 and 7.6, to engage or employ any persons as agents, representatives,
employees, or independent contractors (including without limitation, real
estate advisers, investment advisers, transfer agents, registrars,
underwriters, accountants, attorneys at law, real estate agents, managers,
appraisers, brokers, architects, engineers, construction managers, general
contractors or otherwise) in one or more capacities, in connection with the
management of the Trust's affairs or otherwise, and to pay compensation
from the Trust for services in as many capacities as such Person may be so
engaged or employed and notwithstanding that any such Person is, or is an
Affiliated Person of, a Trustee or officer of the Trust; and, except as
prohibited by law, to delegate any of the powers and duties of the Trustees
to any one or more Trustees, agents, representatives, officers, employees,
independent contractors or other Persons.
4.2.14 To determine whether moneys, Securities or other assets
received by the Trust shall be charged or credited to income or capital or
allocated between income and capital, including the power to amortize or
fail to amortize any part or all of any premium or discount, to treat all
or any part of the profit resulting from the maturity or sale of any asset,
whether purchased at a premium or at a discount, as income or capital, or
apportion the same between income and capital, to apportion the sales price
of any asset between income and capital, and to determine in what manner
any expenses or disbursements are to be borne as between income and
capital, whether or not in the absence of the power and authority conferred
by this subsection such moneys, Securities or other assets would be
regarded as income or as capital or such expense or disbursement would be
charged to income or to capital; to treat any dividend or other
distribution on any investment as income or capital or to apportion the
same between income and capital; to provide or fail to provide reserves for
depreciation, amortization or obsolescence in respect of all or any part of
the Trust Estate subject to depreciation, amortization or obsolescence in
such amounts and by such methods as they shall determine; and to determine
the method or form in which the accounts and records of the Trust shall be
kept and to change from time to time such method or form.
4.2.15 To determine from time to time the value of all or any part of
the Trust Estate and of any services, Securities, property or other
consideration to be furnished to or acquired by the Trust, and from time to
time to revalue all or any part of the Trust Estate in accordance with such
Valuations or other information, which Valuations or other information may
be provided by Persons retained for the purpose, as the Trustees, in their
sole judgment, may deem necessary.
4.2.16 To collect, sue for, and receive all sums of money coming due
to the Trust, and to engage in, intervene in, prosecute, join, defend,
compound, compromise, abandon or adjust, by arbitration or otherwise, any
actions, suits, proceedings, disputes, claims, controversies, demands or
other litigation relating to the Trust, the Trust Estate or the Trust's
affairs, to enter into agreements therefor, whether or not any suit is
commenced or claim accrued or asserted and, in advance of any controversy,
to enter into agreements regarding arbitration, adjudication or settlement
thereof.
4.2.17 To renew, modify, release, compromise, extend, consolidate, or
cancel, in whole or in part, any obligation to or of the Trust.
4.2.18 To purchase and pay for out of the Trust Estate insurance
contracts and policies insuring the Trust Estate against any and all risks
and insuring the Trust, the Trustees, the Shareholders, the officers of the
Trust, or any or all of them, against any and all claims and liabilities of
every nature asserted by any person arising by reason of any action alleged
to have been taken or omitted by the Trust or by the Trustees, Shareholders
or officers.
4.2.19 To cause legal title to any of the Trust Estate to be held by
or in the name of the Trustees or, except as prohibited by law, by or in
the name of the Trust or one or more of the Trustees or any other Person as
the Trustees may determine, on such terms and in such manner and with such
powers (not inconsistent with Section 1.1), and with or without disclosure
that the Trust or Trustees are interested therein.
4.2.20 To adopt a fiscal year and accounting method for the Trust, and
from time to time to change such fiscal year and accounting method, and to
engage a firm of independent public accountants to audit the financial
records of the Trust.
4.2.21 To adopt and use a seal (but the use of a seal shall not be
required for the execution of instruments or obligations of the Trust).
4.2.22 With respect to any Securities issued by the Trust, to provide
that the same may be signed by the manual signature of one or more Trustees
or officers, or Persons who have theretofore been Trustees or officers or
by the facsimile signature of any such Person (with or without
countersignature by a transfer agent, registrar, authenticating agent or
other similar Person), and to provide that ownership of such Securities may
be conclusively evidenced by the books and records of the Trust or any
appropriate agent of the Trust without the necessity of any certificate,
all as determined by the Trustees from time to time to be consistent with
normal commercial practices.
4.2.23 To declare and pay dividends and distributions as provided in
Section 7.5.
4.2.24 To adopt a dividend or distribution reinvestment or similar
such plan for the Trust, and to provide for the cost of the administration
thereof to be borne by the Trust.
4.2.25 To file any and all documents and take any and all such other
action as the Trustees in their sole judgment may deem necessary in order
that the Trust may lawfully conduct its business in any jurisdiction.
4.2.26 To participate in any reorganization, readjustment,
consolidation, merger, dissolution, sale or purchase of assets, lease or
similar proceedings of any corporation, partnership or other organization
in which the Trust shall have an interest and in connection therewith to
delegate discretionary powers to any reorganization, protective or similar
committee and to pay assessments and other expenses in connection
therewith.
4.2.27 To cause to be organized or assist in organizing any Person,
which may or may not be a subsidiary of the Trust, under the laws of any
jurisdiction to acquire the Trust Estate or any part or parts thereof or to
carry on any business in which the Trust shall directly or indirectly have
any interest; and, also, subject to the provisions of this Declaration, to
cause the Trust to merge with such Person or any existing Person or to
sell, rent, lease, hire, convey, negotiate, assign, exchange or transfer
the Trust Estate or any part or parts thereof to or with any such Person or
any existing Person in exchange for the Securities thereof or otherwise,
and to lend money to, subscribe for the Securities of, and enter into any
contracts with, any such Person in which the Trust holds or is about to
acquire Securities or any other interest.
4.2.28 To determine whether or not, at any time or from time to time,
to attempt to cause the Trust to qualify or to cease to qualify for
taxation as a Real Estate Investment Trust, and to take all action deemed
by the Trustees appropriate in connection with maintaining or ceasing to
maintain such qualification.
4.2.29 To make any indemnification payment authorized by this
Declaration of Trust.
4.2.30 To do all other such acts and things as are incident to the
foregoing, and to exercise all powers which are necessary or useful to
carry on the business of the Trust, to promote any of the purposes for
which the Trust is formed, and to carry out the provisions of this
Declaration.
4.3 BY-LAWS. The Trustees may, but are not required to, make, adopt, amend
or repeal By-Laws containing provisions relating to the business of the Trust,
the conduct of its affairs, its rights or powers and the rights or powers of its
Shareholders, Trustees or officers not inconsistent with law or with this
Declaration. Such By-Laws may provide for the appointment by the Chairman and
President of assistant officers or of agents of the Trust in addition to those
provided for in the foregoing Section 4.2.12, subject however to the right of
the Trustees to remove or discharge such officers or agents.
ARTICLE V - AGENTS
------------------
5.1 EMPLOYMENT OF EMPLOYEES, AGENTS, ETC. The Trustees are responsible for
the general policies of the Trust and for such general supervision of the
business of the Trust conducted by all officers, agents, employees, advisers,
managers or independent contractors of the Trust as may be necessary to ensure
that such business conforms to the provisions of this Declaration. However, the
Trustees are not, and shall not be, required personally to conduct the business
of the Trust and, consistent with their ultimate responsibility as stated above,
the Trustees shall have the power to appoint, employ or contract with any Person
(including one or more of themselves or any corporation, partnership, or trust
in which one or more of them may be directors, officers, stockholders, partners
or trustees) as the Trustees may deem necessary or proper for the transaction of
the business of the Trust, and for such purpose may grant or delegate such
authority to any such Person as the Trustees may in their sole discretion deem
necessary or desirable without regard to whether such authority is normally
granted or delegated by trustees.
The Trustees shall have the power to determine the terms and compensation
of any Person whom they may employ or with whom they may contract.
ARTICLE VI - SHARES AND SHAREHOLDERS
------------------------------------
6.1 SHARES. The beneficial interest in the Trust shall be divided into
Shares. The total number of Shares the Trust shall have authority to issue shall
be thirty-two million and fifty thousand (32,050,000) shares, consisting of (i)
seven million and fifty thousand (7,050,000) preferred shares of beneficial
interest, each without par value ("Preferred Shares"), and (ii) twenty five
million (25,000,000) common shares of beneficial interest, each without par
value ("Common Shares," and together with the Preferred Shares, the "Shares").
The Shares may be issued for such consideration as the Trustees shall determine,
including upon the conversion of convertible debt, or by way of share dividend
or share split in the discretion of the Trustees. In addition to the issuance of
Shares by way of share dividend or share split, the Trustees may combine
outstanding Shares by way of a reverse share split and provide for the payment
in cash in lieu of any fractional interest in a combined Share; and the
mechanics authorized by the Trustees to implement any such combination shall be
binding upon all Shareholders, holders of convertible debt, optionees and others
with any interest in the Shares. Outstanding Shares shall be transferable and
assignable in like manner as are shares of stock of a Massachusetts business
corporation. Shares reacquired by the Trust shall no longer be deemed
outstanding and shall have no voting or other rights unless and until reissued.
Shares reacquired by the Trust may be canceled by action of the Trustees. All
Shares shall be fully paid and nonassessable by or on behalf of the Trust upon
receipt of full consideration for which they have been issued or without
additional consideration if issued by way of share dividend, share split, or
upon the conversion of convertible debt.
6.1.1 Preferred Shares. Upon the vote of two-thirds of the Board of
Trustees, the Trust may issue Preferred Shares in one or more series
consisting of such numbers of Shares and having such preferences,
conversion and other rights, voting powers, restrictions and limitations as
to dividends, qualifications and terms and conditions of redemption of
Shares as the Board of Trustees may from time to time determine when
designating such series.
6.1.2 Common Shares.
6.1.2.1 General. Upon the vote of a majority of the Board of
Trustees, the Trust may issue Common Shares. Shares of a particular
class of issued Common Shares shall have equal dividend, distribution,
liquidation and other rights, and shall have no preference,
cumulative, preemptive, appraisal, conversion or exchange rights.
6.1.2.2 Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Trust, each holder of Common Shares
shall be entitled to receive, ratably with each other holder of Common
Shares that portion of the assets of the Trust available for
distribution to the holders of its Common Shares and as the number of
Common Shares held by such holder bears to the total number of Common
Shares then outstanding.
6.1.2.3 Voting Rights. The holders of Common Shares shall be
entitled to vote on all matters submitted to the holders of Common
Shares for a vote, at all meetings of the Shareholders, and each
holder of Common Shares shall be entitled to one vote for each Common
Share held by such Shareholder.
6.2 LEGAL OWNERSHIP OF TRUST ESTATE. The legal ownership of the Trust
Estate and the right to conduct the business of the Trust are vested exclusively
in the Trustees, and the Shareholders shall have no interest therein other than
the beneficial interest in the Trust conferred by their Shares issued hereunder,
and they shall have no right to compel any partition, division, dividend or
distribution of the Trust or any of the Trust Estate, nor can they be called
upon to share or assume any losses of the Trust or suffer an assessment of any
kind by virtue of their ownership of Shares.
6.3 SHARES DEEMED PERSONAL PROPERTY. The Shares shall be personal property
and shall confer upon the holders thereof only the interest and rights
specifically set forth in this Declaration. The death, insolvency or incapacity
of a Shareholder shall not dissolve or terminate the Trust or affect its
continuity nor give his legal representative any rights whatsoever, whether
against or in respect of other Shareholders, the Trustees or the Trust Estate or
otherwise except the sole right to demand and, subject to the provisions of this
Declaration, the By-Laws, if adopted, and any requirements of law, to receive a
new certificate for Shares registered in the name of such legal representative,
in exchange for the certificate held by such Shareholder.
6.4 SHARE RECORD, ISSUANCE AND TRANSFERABILITY OF SHARES. Records shall be
kept by or on behalf of and under the direction of the Trustees, which shall
contain the names and addresses of the Shareholders, the number of Shares held
by them respectively, and the number of the certificates, if any, representing
the Shares, and in which there shall be recorded all transfers of Shares. The
Persons in whose names Shares or certificates therefor are registered on the
records of the Trust shall be deemed the absolute owners of such Shares for all
purposes of this Trust; but nothing herein shall be deemed to preclude the
Trustees or officers, or their agents or representatives, from inquiring as to
the actual ownership of Shares. Until a transfer is duly registered on the
records of the Trust, the Trustees shall not be affected by any notice of such
transfer, either actual or constructive. The payment thereof to the Person in
whose name any Shares are registered on the records of the Trust or to the duly
authorized agent of such Person (or if such Shares are so registered in the
names of more than one Person, to any one of such Persons or to the duly
authorized agent of such Person) shall be sufficient discharge for all dividends
or distributions payable or deliverable in respect of such Shares and from all
liability to see to the application thereof.
In case of the loss, mutilation or destruction of any certificate for
Shares, the Trustees may issue or cause to be issued a replacement certificate
on such terms and subject to such rules and regulations as the Trustees may from
time to time prescribe. Nothing in this Declaration shall impose upon the
Trustees or a transfer agent a duty, or limit their rights to inquire into
adverse claims.
In lieu of issuing certificates for Shares, the Trustees may adopt
procedures for the Shares to be considered as uncertificated Securities to the
same extent that such procedures would be available for shares of capital stock
of a Massachusetts business corporation.
Unless the Trustees shall have determined that the Trust shall no longer
qualify as a REIT, any issuance, redemption or transfer of Trust Shares which
would operate to disqualify the Trust as a real estate investment trust for
purposes of Federal income tax, is null and void, and such transaction will be
canceled when so determined in good faith by the Trustees.
6.5 DIVIDENDS AND DISTRIBUTIONS TO SHAREHOLDERS. The Trustees may from time
to time declare and pay to Shareholders such dividends or distributions in cash
or other property, out of current or accumulated income, capital, capital gains,
principal, surplus, proceeds from the increase or refinancing of Trust
obligations, for the repayment of loans made by the Trust, from the sale of
portions of the Trust Estate, or from any other source as the Trustees in their
discretion shall determine; but, in any event, the Trustees, shall, from time to
time, declare and pay to the Shareholders such distributions as may be necessary
to continue to qualify the Trust as a Real Estate Investment Trust, so long as
such qualification, in the opinion of the Trustees, is in the best interest of
the Shareholders. Shareholders shall have no right to any dividend or
distribution unless and until declared by the Trustees.
6.6 TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND REGISTRAR. The Trustees
shall have power to employ one or more transfer agents, dividend disbursing
agents, dividend or distribution reinvestment plan agents, and registrars and to
authorize them on behalf of the Trust: to keep records, to hold and disburse any
dividends and distributions and to have and perform powers and duties
customarily had and performed by transfer agents, dividend disbursing agents,
dividend or distribution reinvestment plan agents, and registrars as may be
conferred upon them by the Trustees.
6.7 SHAREHOLDERS' MEETINGS AND CONSENTS. The Trustees shall cause to be
called and held an Annual Meeting of the Shareholders at such time and such
place as they may determine, at which Trustees shall be elected any other proper
business may be conducted. The Annual Meeting of Shareholders shall be held
after not fewer than 10 days nor more than 60 days written notice of such
meeting has been sent to Shareholders by the Trustees and after delivery to the
Shareholders of the Annual Report for the fiscal year then ended. Special
meetings of Shareholders may be called by a majority of the Trustees, a majority
of the Unaffiliated Trustees, or the Chairman or other chief executive officer
of the Trust, and shall be called by an officer of the Trust upon the written
request of Shareholders holding not less than 10% of the outstanding Shares of
the Trust entitled to vote. Upon receipt of a written request either in person
or by registered mail stating the purpose(s) of the meeting requested by
Shareholders, the Trust shall provide all Shareholders written notice (either in
person or by mail) of a meeting and the purpose of such meeting to be held on a
date not fewer than 10 days nor more than 60 days after the date of such notice,
at a time and place determined by the Trustees. If there shall be no Trustees, a
special meeting of the Shareholders shall be held promptly for the election of
successor Trustees. The call and notice of any special meeting shall state the
purpose of the meeting and no other business shall be considered at such
meeting. A majority of the outstanding Shares entitled to vote at any meeting
represented in person or by proxy shall constitute a quorum at such meeting.
Whenever Shareholders are required or permitted to take any action, such action
may be taken, except as otherwise provided by this Declaration or required by
law, by a majority of the votes cast at a meeting of Shareholders at which a
quorum is present by holders of Shares entitled to vote thereon, or without a
meeting by written consent setting forth the action so taken signed by holders
of all outstanding Shares entitled to vote thereon. Notwithstanding this or any
other provision of this Declaration, no vote or consent of Shareholders shall be
required to approve the sale, exchange or other disposition by the Trustees of
one or more assets of the Trust or the pledging, hypothecating, granting
security interests in, mortgaging, encumbering or leasing of all or any of the
Trust Estate.
6.8 PROXIES. Whenever the vote or consent of Shareholders is required or
permitted under this Declaration, such vote or consent may be give either
directly by the Shareholder or by a proxy. The Trustees may solicit such proxies
from the Shareholders or any of them in any matter requiring or permitting the
Shareholders' vote or consent.
6.9 REPORTS TO SHAREHOLDERS. The Trustees shall cause to be prepared and
mailed not later than 120 days after the close of each fiscal year of the Trust
a report of the business and operation of the Trust during such fiscal year to
the Shareholders, which report shall constitute the accounting of the Trustees
for such fiscal year. The report shall be in such form and have such content as
the Trustees deem proper, but shall in any event include a balance sheet, an
income statement and a surplus statement, each prepared in accordance with
generally accepted accounting principles, shall be audited by an independent
certified public accountant and shall be accompanied by the report of such
accountant thereon.
6.10 FIXING RECORD DATE. For the purpose of determining the Shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend or distribution, or for the
purpose of any other action, the Trustees may from time to time close the
transfer books for such period, not exceeding 30 days, as the Trustees may
determine; or without closing the transfer books the Trustees may fix a date not
more than 60 days prior to the date of any meeting of Shareholders or dividend
payment or other action as a record date for the determination of Shareholders
entitled to vote at such meeting or any adjournment thereof or to receive such
dividend or to take any other action. Any Shareholder who was a Shareholder at
the time so fixed shall be entitled to vote at such meeting or any adjournment
thereof or to receive such dividend or to take such other action, even though he
has since that date disposed of his Shares, and no Shareholder becoming such
after that date shall be so entitled to vote at such meeting or any adjournment
thereof or to receive such dividend or to take such other action.
6.11 NOTICE TO SHAREHOLDERS. Any notice of meeting or other notice,
communication or report to any Shareholder shall be deemed duly delivered to
such Shareholder when such notice, communication or report is deposited, with
postage thereon prepaid, in the United States mail, addressed to such
Shareholder at his address as it appears on the records of the Trust or is
delivered in person to such Shareholder.
6.12 Shareholders' Disclosure; Trustees' Right to Refuse to Transfer
Shares; Limitation on Holdings; Redemption of Shares:
6.12.1 The Shareholders shall upon demand disclose to the
Trustees in writing such information with respect to direct and
indirect ownership of the Shares as the Trustees deem necessary to
comply with the REIT Provisions of the Internal Revenue Code or to
comply with the requirements of any taxing authority or governmental
agency.
6.12.2 Whenever it is deemed by them to be reasonably necessary
to protect the tax status of the Trust as a REIT, the Trustees may
require a statement or affidavit from each Shareholder or proposed
transferee of Shares setting forth the number of Shares already owned
by him and any related Person specified in the form prescribed by the
Trustees for that purpose. If, in the opinion of the Trustees, the
proposed transfer may jeopardize the qualification of the Trust as a
REIT, the Trustees shall have the right, but not a duty, to refuse to
transfer the Shares to the proposed transferee. All contracts for the
sale or other transfer of Shares shall be subject to this provision.
6.12.3 Notwithstanding any other provision of this Declaration of
Trust to the contrary and subject to the provisions of subsection
6.12.5, no Person, or Persons acting as a group, shall at any time
directly or indirectly acquire ownership in the aggregate of more than
9.8% of the outstanding Shares of the Trust (the "Limit"). Shares
owned by a Person or group of Persons in excess of the Limit at any
time shall be deemed "Excess Shares." For the purposes of this Section
6.12, the term "ownership" shall be defined in accordance with or by
reference to the qualification requirements of the REIT Provisions of
the Internal Revenue Code and shall also mean ownership as defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, and the term "group" shall have
the same meaning as that term has for purposes of Section 13(d)(3) of
such Act as amended. All Shares which any Person has the right to
acquire upon exercise of outstanding rights, options and warrants, and
upon conversion of any Securities convertible into Shares, if any,
shall be considered outstanding for purposes of the Limit if such
inclusion will cause such person to own more that the Limit.
6.12.4 The Trustees, by notice to the holder thereof, may redeem
any or all Shares that are Excess Shares (including Shares that remain
or become Excess Shares because of the decrease in outstanding Shares
resulting from such redemption); and from and after the date of giving
of such notice of redemption ("redemption date") the Shares called for
redemption shall cease to be outstanding and the holder thereof shall
cease to be entitled to dividends, voting rights and other benefits
with respect to such Shares excepting only the right to payment by the
Trust of the redemption price determined and payable as set forth in
the following two sentences. Subject to the limitation on payment set
forth in the following sentence, the redemption price of each Excess
Share called for redemption shall be the average daily per Share
closing sales price if the Shares of the Trust are listed on a
national securities exchange, and if the Shares are not so listed
shall be the mean between the average per Share closing bid prices and
the average per Share closing asked prices, in each case during the 30
day period ending on the business day prior to the redemption date, or
if there have been no sales on a national securities exchange and no
published bid quotations and no published asked quotations with
respect to Shares of the Trust during such 30 day period, the
redemption price shall be the price determined by the Trustees in good
faith. Unless the Trustees determine that it is in the interest of the
Trust to make earlier payment of all of the amount determined as the
redemption price per Share in accordance with the preceding sentence,
the redemption price shall by payable only upon the liquidation of the
Trust and shall not exceed an amount which is the sum of the per Share
distributions designated as liquidating distributions and return of
capital distributions declared with respect to unredeemed Shares of
the Trust of record subsequent to the redemption date, and no interest
shall accrue with respect to the period subsequent to the redemption
date to the date of such payment; provided, however, that in the event
that within 30 days after the redemption date the Person from whom the
Excess Shares have been redeemed sells (and notifies the Trust of such
sale) a number of the remaining Shares owned by him at least equal to
the number of such Excess Shares (and such sale is to a Person in
whose hands the Shares sold would not be Excess Shares), then the
Trust shall rescind the redemption of the Excess Shares if following
such rescission such Person would not be the holder of Excess Shares,
except that if the Trust receives an opinion of its counsel that such
recission would jeopardize the tax status of the Trust as a REIT then
the Trust shall in lieu of recission make immediate payment of the
redemption price.
6.12.5 The Limit set forth in Section 6.12.3 shall not apply to
acquisitions Shares pursuant to a cash tender offer made for all
outstanding Shares of the Trust (including Securities convertible into
Shares) in conformity with applicable federal and state securities
laws where two-thirds of the outstanding Shares (not including Shares
or Securities convertible into Shares held by the tender offerer
and/or any "affiliates" or "associates" thereof within the meaning of
the Act) are duly tendered and accepted pursuant to the cash tender
offer; nor shall the Limit apply to the acquisition of Shares by an
underwriter in a public offering of Shares, or in any transaction
involving the issuance of Shares by the Trust, in which a majority of
the Trustees determine that the underwriter or other person or party
initially acquiring such Shares will make a timely distribution of
such Shares to or among other holders such that, following such
distribution, none of such Shares will be Excess Shares. The Trustees
in their discretion may exempt from the Limit ownership of certain
designated Shares while owned by a person who has provided the
Trustees with evidence and assurances acceptable to the Trustees that
the qualification of the Trust as a REIT would not be jeopardized
thereby.
6.12.6 Notwithstanding any other provision of this Declaration of
Trust to the contrary, any purported acquisition of Shares of the
Trust which would result in the disqualification of the Trust as a
REIT shall be null and void.
6.12.7 Nothing contained in this Section 6.12 or in any other
provision of this Declaration of Trust shall limit the authority of
the Trustees to take such other action as they deem necessary or
advisable to protect the Trust and the interests of the Shareholders
by preservation of the Trust's qualification as a REIT under the REIT
Provisions of the Internal Revenue Code.
6.12.8 If any provision of this Section 6.12 or any application
of any such provision is determined to be invalid by any Federal or
state court having jurisdiction over the issues, the validity of the
remaining provisions shall not be affected and other applications of
such provision shall be affected only to the extent necessary to
comply with the determination of such court. To the extent this
Section 6.12 may be inconsistent with any other provision of this
Declaration of Trust, this Section 6.12 shall be controlling.
6.13 INSPECTION BY SHAREHOLDERS. Shareholders of record of the Trust shall
have the same right to inspect the records of the Trust as has a stockholder in
a Massachusetts business corporation.
ARTICLE VI - LIABILITY OF TRUSTEES, SHAREHOLDERS
AND OFFICERS, AND OTHER MATTERS
------------------------------------------------
7.1 LIMITATION OF LIABILITY OF TRUSTEES AND OFFICERS. No Trustee or officer
of the Trust shall be liable to the Trust or to any Trustee or Shareholder for
any act or omission of any other Trustee, Shareholder, officer or agent of the
Trust or be held to any personal liability whatsoever in tort, contract or
otherwise in connection with the affairs of this Trust, except only that arising
from his own bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties.
7.2 LIMITATION OF LIABILITY OF SHAREHOLDERS, TRUSTEES AND OFFICERS. The
Trustees and officers in incurring any debts, liabilities or obligations, or in
taking or omitting any other actions for or in connection with the Trust are,
and shall be deemed to be, acting as Trustees or officers of the Trust and not
in their own individual capacities. Except to the extent provided in Section 7.1
no Trustee or officer shall, nor shall any Shareholder, be liable for any debt,
claim, demand, judgment, decree, liability or obligation of any kind of, against
or with respect to the Trust arising out of any action taken or omitted for or
on behalf of the Trust and the Trust shall be solely liable therefor and resort
shall be had solely to the Trust Estate for the payment or performance thereof.
Each Shareholder shall be entitled to pro rata indemnity from the Trust Estate
if, contrary to the provisions hereof, such Shareholder shall be held to any
such personal liability.
7.3 EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS. As far as practicable, the
Trustees shall cause any written instrument creating an obligation of the Trust
to include a reference to this Declaration and to provide that neither the
Shareholders nor the Trustees nor the officers of the Trust shall be liable
thereunder and that the other parties to such instrument shall look solely to
the Trust Estate for the payment of any claim thereunder or for the performance
thereof; however, the omission of such provision form any such instrument shall
not render the Shareholders or any Trustee or officer of the Trust liable nor
shall the Trustees or any officer of the Trust be liable to anyone for such
omission.
7.4 INDEMNIFICATION AND REIMBURSEMENT OF TRUSTEES AND OFFICERS. Any Person
made a party to any action, suit or proceeding or against whom a claim or
liability is asserted by reason of the fact that he, his testator or intestate
was or is a Trustee or officer or active in such capacity on behalf of the Trust
shall be indemnified and held harmless by the Trust against judgments, fines,
amounts paid on account thereof (whether in settlement or otherwise) and
reasonable expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the defense of such action, suit, proceeding, claim or
alleged liability or in connection with any appeal therein, whether or not the
same proceeds to judgment or is settled or otherwise brought to a conclusion;
provided, however, that no such Person shall be so indemnified or reimbursed for
any claim, obligation or liability which arose out of the Trustee's or officer's
bad faith, willful misfeasance, gross negligence or reckless disregard of his
duties; and provided, further, that such Person gives prompt notice of such
action, suit or proceeding, executes such documents and takes such action as
will permit the Trust to conduct the defense or settlement thereof and
cooperates therein. In the event of a settlement approved by the Trustees of any
such claim, alleged liability, action, suit or proceeding, indemnification and
reimbursement shall be provided except as to such matters covered by the
settlement which the Trust is advised by its counsel arose from the Trustee's or
officer's bad faith, willful misfeasance, gross negligence, or reckless
disregard of his duties; provided, however, that such advice by counsel shall
not preclude any Trustee or officer from seeking a judicial determination that
he did not act in bad faith, willful misfeasance, gross negligence or reckless
disregard of his duties and is entitled to indemnification and reimbursement
hereunder. Expenses may be paid in advance by the Trust upon receipt of an
undertaking by or on behalf of a Person indemnified to pay over the amount
unless it shall ultimately be determined he is entitled to be indemnified by the
Trust as authorized herein. Such rights of indemnification and reimbursement
shall be satisfied only out of the Trust Estate. The rights accruing to any
Person under these provisions shall not exclude any other right to which he may
be lawfully entitled, nor shall anything contained herein restrict the right of
the Trust to indemnify or reimburse any such Person in any proper case even
though not specifically provided for herein, nor shall anything contained herein
restrict such right of a Trustee to contribution as may be available under
applicable law. The Trust shall have power to purchase and maintain liability
insurance on behalf of any Person entitled to indemnity hereunder, whether or
not the Trust would have the power to indemnify against that liability.
7.5 RIGHT OF TRUSTEES AND OFFICERS TO OWN SHARES OR OTHER PROPERTY AND TO
ENGAGE IN OTHER BUSINESS. Any Trustee or officer may acquire, own, hold and
dispose of Shares in the Trust, for his individual account, and may exercise all
rights of a Shareholder to the same extent and in the same manner as if he were
not a Trustee or officer. Any Trustee or officer may have personal business
interests and may engage in personal business activities, which interests and
activities may include the acquisition, syndication, holding, management,
development, operation or deposit in, for his own account or for the account of
others, of interests in Real Property or Persons engaged in the real estate
business, even if the same directly compete with the actual business being
conducted by the Trust. Any Trustee or officer may be interested as trustee,
officer, director, stockholder, partner, member or employee, or otherwise have a
direct or indirect interest in any Person who may be engaged to render advice or
services to the Trust, and may receive compensation from such Person as well as
compensation as Trustee, officer or otherwise hereunder and no such activities
shall be deemed to conflict with his duties and powers as Trustee or officer.
7.6 TRANSACTIONS WITH AFFILIATES. The Trust shall not engage in
transactions with any Trustee, officer, or any Affiliated Person of such Trustee
or officer, except to the extent that each such transaction has, after
disclosure of such affiliation, been approved or ratified by the affirmative
vote of a majority of the Trustees not having any interest in such transaction
after a determination by them that:
7.6.1 The transaction is fair and reasonable to the Trust and its
Shareholders;
7.6.2 The terms of such transaction are at least as favorable as the
terms of any comparable transactions made on an arm's length basis that are
known to such Trustees;
7.6.3 Payments to any Trustee or officer for services rendered in a
capacity other than that as Trustee, or officer may only be made upon
determination that:
(i) the compensation is not in excess of their compensation paid
for any comparable services; and
(ii) the compensation is not greater than the charges for
comparable services available from others who are competent and not
affiliated with any of the parties involved.
The provisions of this Section 7.6 shall not prohibit the Trust from
participating in any investment on a pari passu basis with any other entity
whose trustees or directors are the same persons as the Trustees of the Trust
and as a result there are no Trustees of the Trust who may not also have an
interest in said investment as trustees or directors of such other entity.
7.7 PERSONS DEALING WITH TRUSTEES OR OFFICERS. Any act of the Trustees or
officers purporting to be done in their capacity as such shall, as to any
Persons dealing with such Trustees or officers, be conclusively deemed to be
within the purposes of this Trust and within the powers of the Trustees and
officers. No Person dealing with the Trustees or any of them, or with the
authorized officers, agents or representatives of the Trust shall be bound to
see to the application of any funds or property passing into their hands or
control. The receipt of the Trustees or any of them, or of authorized officers,
agents, or representatives of the Trust, for moneys or other consideration,
shall be binding upon the Trust.
7.8 RELIANCE. The Trustees and officers may consult with counsel (which may
be a firm in which one or more of the Trustees or officers is or are members)
and the advice or opinion of such counsel shall be full and complete personal
protection to all of the Trustees and officers in respect of any action taken or
suffered by them in good faith and in reliance on or in accordance with such
advice or opinion. In discharging their duties, Trustees and officers, when
acting in good faith, may rely upon financial statements of the Trust
represented to them to be correct by the President or the officer of the Trust
having charge of its books of account, or stated in a written report by an
independent certified public accountant fairly to present the financial position
of the trust. The Trustees may rely, and shall be personally protected in
acting, upon any instrument or other document believed by them to be genuine.
ARTICLE VIII - DURATION, TERMINATION, AMENDMENT
AND REORGANIZATION OF TRUST
-----------------------------------------------
8.1 DURATION OF TRUST. The Trust shall continue perpetually unless
terminated pursuant to Section 8.2.
8.2 TERMINATION OF TRUST. The Trust may be terminated at any meeting of
Shareholders called for that purpose, by the affirmative vote of the holders of
not less than a majority of the Shares outstanding and entitled to vote thereon.
Upon the termination of the Trust:
(i) the Trust shall carry on no business except for the purpose
of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the
Trust and all of the powers of the Trustees under this Declaration
shall continue until the affairs of the Trust shall have been wound
up, including the power to fulfill or discharge the contracts of the
Trust, collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining Trust Estate to
one or more Persons at public or private sale for consideration which
may consist in whole or in part of cash, Securities or other property
of any kind, discharge or pay its liabilities, and do all other acts
appropriate to liquidate its business (and provided that the Trustees
may, if permitted by applicable law, and if they deem it to be in the
best interest of the Shareholders, appoint a liquidating trust, or
agent, or other entity, to perform one or more of the foregoing
functions); and
(iii) after paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreements, as they deem necessary for their protection, the
Trustee or any liquidating trust, agent or other entity appointed by
them, shall distribute the remaining Trust Estate among the
Shareholders pro rata according to the number of Shares held by each.
If any plan for the termination of the Trust approved by the
holders of a majority of the Shares outstanding and entitled to vote
thereon and agreeable to a majority of the Trustees provides for
actions of the Trustees other than as aforesaid, the Trustees shall
have full authority to take all action as in their opinion is
necessary or appropriate to implement said plan.
8.2.1 After termination of the Trust and distribution to the
Shareholders as provided herein or in any said plan so approved by the
Shareholders, the Trustees shall execute and lodge among the records
of the Trust an instrument in writing setting forth the fact of such
termination, and the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder and the rights and interests
of all Shareholders hereunder shall thereupon cease.
8.3 MERGER, ETC. Upon the vote or written consent of a majority of the
Trustees, including a majority of the Unaffiliated Trustees, and with the
approval of the holders of a majority of the Shares then outstanding and
entitled to vote, at a meeting the notice for which included a statement of the
proposed action, the Trustees may (a) merge the Trust into, or sell, convey and
transfer the Trust Estate to, any corporation, association, trust or other
organization in exchange for shares or Securities thereof, or beneficial
interests therein, or other consideration, and the assumption by such transferee
of the liabilities of the Trust and (b) thereupon terminate the Trust and,
subject to Section 8.2, distribute such shares, securities, beneficial
interests, or other consideration, ratably among the Shareholders in redemption
of their Shares.
8.4 AMENDMENT PROCEDURE. This Declaration may be amended by the vote or
written consent of a majority of the Trustees and of the holders of a majority
of the outstanding Shares entitled to vote thereon; provided, however, that no
amendment which would reduce the priority of payment or amount payable to any
class of Shares of the Trust upon liquidation of the Trust or that would
diminish or eliminate any voting rights pertaining to any class of Shares shall
be made unless approved by the vote or consent of the holders of two-thirds of
the outstanding Shares of such class. The Trustees may also amend this
Declaration by the vote of two-thirds of the Trustees without the vote or
consent of Shareholders at any time to the extent deemed by the Trustees in good
faith to be necessary to meet the requirements for qualification as a Real
Estate Investment Trust under the REIT Provisions of the Internal Revenue Code
or any interpretation thereof by a court or other governmental agency of
competent jurisdiction, but the Trustees shall not be liable for failing so to
do. Actions by the Trustees pursuant to subsection 9.3.1 hereof that result in
amending this Declaration may also be effected without vote or consent of any
Shareholder.
ARTICLE IX - MISCELLANEOUS
--------------------------
9.1 APPLICABLE LAW. This Declaration of Trust is made in The Commonwealth
of Massachusetts; the situs, domicile and residency of the Trust for all
purposes is Massachusetts; and the Trust is created under and is to be governed
by and construed and administered according to the laws of said Commonwealth,
including the Massachusetts Business Corporation Law as the same may be amended
from time to time, to which reference is made with the intention that matters
not specifically covered herein or as to which an ambiguity may exist shall be
resolved as if the Trust were a Massachusetts business corporation, but the
reference to said Business Corporation Law is not intended to and shall not give
the Trust, the Trustees, the Shareholders or any other person any right, power,
authority or responsibility available only to or in connection with an entity
organized in corporate form.
9.2 FILING OF COPIES; REFERENCES; HEADINGS. The original or a copy of this
instrument and of each amendment hereto shall be kept at the office of the Trust
where it may be inspected by any Shareholder. A copy of this instrument and of
each amendment hereto shall be filed by the Trust with the Secretary of The
Commonwealth of Massachusetts and with the Boston City Clerk, as well as any
other governmental office where such filing may from time to time be required,
but the failure to make any such filing shall not impair the effectiveness of
this instrument or any such amendment. Anyone dealing with the Trust may rely on
a certificate by an officer of the Trust as to whether or not any such
amendments have been made, as to the identities of the Trustees and officers,
and as to an matters in connection with the Trust hereunder; and, with the same
effect as if it were the original, may rely on a copy certified by an officer of
the Trust to be a copy of this instrument or of any such amendments. In this
instrument and in any such amendment, references to this instrument, and all
expressions like "herein", "hereof", and "hereunder" shall be deemed to refer to
this instrument as a whole as the same may be amended or affected by any such
amendments. The masculine gender shall include the feminine and neuter genders.
Headings are placed herein for convenience of reference only and shall not be
taken as part hereof or control or affect the meaning, construction or effect of
this instrument. This instrument may be executed in any number of counterparts
each of which shall be deemed an original.
9.3 Provisions of the Trust in Conflict With Law or Regulations.
9.3.1 The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any one
or more of such provisions (the "Conflicting Provisions") could have
the effect of preventing the Trust from qualifying as a real estate
investment trust under the REIT Provisions of the Internal Revenue
Code (and if the Trustees have determined the Trust should elect to be
taxed as a REIT under the Internal Revenue Code) or are in conflict
with other applicable federal or state laws or regulations, the
Conflicting Provisions shall be deemed never to have constituted a
part of the Declaration; provided, however, that such determination by
the Trustees shall not affect or impair any of the remaining
provisions of this Declaration or render invalid or improper any
action taken or omitted (including but not limited to the election of
Trustees) prior to such determination. A certification signed by a
majority of the Trustees setting forth any such determination and
reciting that it was duly adopted by the Trustees, or a copy of this
Declaration, with the Conflicting Provisions removed pursuant to such
a determination, signed by a majority of the Trustees, shall be
conclusive evidence (except as to Shareholders, as to whom it shall
only be prima facie evidence) of such determination when lodged in the
records of the Trust. The Trustees shall not be liable for failure to
make any determination under this Section 9.3.1. Nothing in this
Section 9.3.1 shall in any way limit or affect the right of the
Trustees to amend this Declaration as provided in Section 8.2.
9.3.2 If any provision of this Declaration shall be held invalid
or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render
invalid or unenforceable any other provision of this Declaration, and
this Declaration shall be carried out as if any such invalid or
unenforceable provisions were not contained herein.
9.4 BINDING EFFECT; SUCCESSORS IN INTEREST. Each Person who becomes a
Shareholder shall, as a result thereof, be deemed to have agreed to and to be
bound by the provisions of this Declaration of Trust. This Declaration shall be
binding upon and inure to the benefit of the Trustees and the Shareholders and
the respective successors, assigns, heirs distributees and legal representatives
of each of them.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have executed this Declaration as
of the __th day of _______, 1999.
STATE OF
COUNTY OF
Then personally appeared _______________, to me known to be one of the
Trustees who executed the foregoing Declaration of Trust and acknowledged the
same to be his free act and deed, this ___ day of __________, 1999.
Notary Public
---------------------------
My commission expires: