EXHIBIT 3.1
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THIRD AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANYAN STRATEGIC REALTY TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST, dated as of March 14,
1986, as amended and restated as of August 8, 1986, and amended on March 8,
1991 and May 4, 1993, amended and restated on August 12, 1998 and amended
and restated on December 13, 1999 is hereby accepted by the Trustees of
BANYAN STRATEGIC REALTY TRUST (the "Trust"), who hereby declare that all
property, real, personal or mixed, tangible or intangible or of any other
description now held or hereafter acquired by or transferred to them in
their capacities as Trustee hereunder, together with the income and profits
therefrom and the proceeds thereof, shall be held by them in trust and
shall be received, managed and disposed of for the benefit of the
Shareholders hereunder and in the manner and subject to the terms and
conditions herein provided.
ARTICLE I
THE TRUST, DEFINITIONS
1.1 NAME. The trust created by this Declaration of Trust, herein
referred to as the "Trust," shall be known by the name "BANYAN STRATEGIC
REALTY TRUST" (the "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 Shareholders of the Trust, or to any officers,
employees or agents of the Trust or the Trustees.
Under circumstances in which the Trustees determine that the use of
the name "BANYAN STRATEGIC REALTY TRUST" is not practicable, legal and
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 in and held by the Trustees as joint
tenants with right of survivorship as Trustees of this Trust, and not
individually, except that the Trustees shall have the power to cause legal
title to any property of this 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, provided
that the interest of the Trust therein is appropriately protected.
1.2 PLACE OF BUSINESS. The Trust shall maintain an office in
Boston, Massachusetts, and shall designate a resident agent for service of
process, which office and agent initially shall be c/o CT Corporation
System, 2 Oliver Street, Boston, Massachusetts 02109. This office and the
name and address of the Trust's resident agent for service of process may
change from time to time in the determination of the Trustees, with any
changes reported from time to time to the Secretary of the Commonwealth of
Massachusetts. 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 Sections 856-860 of the Code as soon as
and as long as it is deemed by the Trustees to be in the best interest of
the Shareholders to make such election; provided, however, that, by
affirmative vote of the holders of two-thirds of the outstanding shares,
the Shareholders may determine that the Trust shall no longer carry on the
business as a real estate investment trust and shall cease to qualify as
such under the Code. 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 Section 856-860 of the 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 lend
funds secured by real property, by interests in entities which own real
property or by a similar security interest, 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.
"Advisor." [Reserved].
"Affiliate." An Affiliate of, or a person Affiliated with, a
specified person, is (i) any person directly or indirectly controlling,
controlled by or under common control with another person, (ii) any person
owning or controlling 10% or more or the outstanding voting securities or
beneficial interests of such other person, (iii) any officer, director,
trustee or general partner of such person and (iv) if such other person is
an officer, director, trustee or partner of another entity, then the entity
for which that person acts in any such capacity.
"Annual Meeting of Shareholders." The meeting referred to in the
first sentence of Section 7.7.
"Annual Report." The report referred to in Section 7.9.
"As-Built Appraised Value of the Property" shall mean the land
portion of the Appraised Value of the mortgaged property, taking into
account the planned development of the property as determined by an MAI
appraisal.
"Average Invested Assets." For any period, the average Total Assets
of the Trust, invested, directory or indirectly, in Mortgage Loans before
reserves for bad debts or other similar non-cash reserves, computed by
taking the average of such values at the end of each month during such
period.
"By-Laws." The By-Laws referred to in Section 4.4, if adopted.
"Chairman" shall mean one of the Trustees designated by a majority of
the Trustees to be Chairman of the Board of Trustees. The Chairman shall
not have any powers not also delegated to the other Trustees, except as
expressly provided herein or in the By-Laws.
"Code." The Internal Revenue Code of 1986, as amended, or
corresponding provisions of any successor legislation.
"Commission." The Securities and Exchange Commission.
"Declaration." This Declaration of Trust and all amendments or
modifications hereof.
"Independent Trustee" shall mean a person other than an officer or
employee of the Trust or its subsidiaries or any other individual having a
relationship which, in the opinion of the Board of Trustees, would
interfere with the exercise of independent judgment in carrying out the
responsibilities of a Trustee.
"Mortgage Loans." Notes, debentures, bonds and other evidences of
indebtedness or obligations which are secured or collateralized by
interests in real property.
"Net Assets." The Total Assets (other than intangibles) of the Trust
at cost before deducting depreciation or other non-cash reserves, less
total liabilities, calculated at least quarterly according to generally
accepted accounting principles on a basis consistently applied.
"Net Income." The net income of the Trust for any period shall mean
total revenues applicable to such period as determined for federal income
tax purposes, less the expenses applicable to such period, other than
additions to reserves for bad debts or other similar non-cash reserves; for
purposes of calculating Operating Expenses, Net Income shall not include
the gain from the sale of the Trust's assets.
"Operating Expenses." All operating, general and administrative
expenses of the Trust as determine under generally accepted accounting
principles, including rent, utilities, capital equipment, salaries, fringe
benefits, travel expenses and other administrative items, but excluding the
expenses of raising capital, interest payments, taxes, non-cash
expenditures (e.g., depreciation, amortization, bad debt reserves), the
Subordinated Incentive Fee, and the costs related directly to a specific
Mortgage Loan investment by the Trust, such as expenses for originating,
acquiring, servicing or disposing of a Mortgage Loan.
"Preferred Shares" shall mean preferred shares of beneficial interest
of the Trust, designated by the Board of Trustees and issued pursuant to
the Declaration.
"REIT" and "real estate investment trust." A real estate investment
trust as defined in Sections 856-860 of the Code.
"Shareholders." The registered holders of Shares.
"Shares." Shares of beneficial interest of the Trust, evidencing a
pro rata ownership interest in the Trust Estate and being of a class having
the right to elect the Trustees of the Trust, issued pursuant to the
Declaration.
"Sponsor." [Reserved].
"Total Assets." The book value of all assets of the Trust,
determined in accordance with generally accepted accounting principles.
"Trust." The Trust created by this Declaration.
"Trustees." As of any particular time, means the individuals holding
office under this Declaration at such time, whether they be the Trustees
named herein or additional or successor Trustees.
"Trust Estate." The assets of the Trust, the legal title to which is
held by the Trustees as Trustees of the Trust and the equitable title to
which is evidenced by the Shares and held by the Shareholders.
"Unimproved Real Property." Property which has each of the following
three characteristics: (i) it was not acquired for the purpose of producing
rental or other operating income, (ii) there is no development or
construction in process on such land, and (iii) there is no development or
construction planned in good faith to commence on such land within one
year.
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
income and cash which may be used to make cash distributions to Share-
holders, and offer the potential for participation in the appreciation
realized upon the sale, refinancing or other disposition of the properties
which secure such investments. The 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 mortgage-backed obligations of or guaranteed or insured -
by the United States Government or any agencies or political
subdivisions thereof;
2.2.2 other obligations of or guaranteed or insured by the
United States Government or by any state, territory or possession of the
United States of America or any agencies or political subdivisions thereof;
2.2.3 shares of other REITs; or
2.2.4 other investments which qualify as "real estate assets,
cash and cash items (including receivables), and Government securities"
under Section 856(c)(5)(A) of the Code;
provided, however, that the assets of the Trust shall at all times be
invested in a manner which permits the Trust to qualify as a REIT under the
Code, so long as the Trust elects to qualify as a REIT.
ARTICLE III
TRUSTEES
3.1 NUMBER, TERM OF OFFICE, QUALIFICATION OF TRUSTEES. The Board
of the Trust shall be comprised of no fewer than three nor more than nine
Trustees, unless one or more Trustees are required to be added to the Board
under the designations of any Preferred Shares, in which case the
authorized number of Trustees shall be increased in order to comply with
such designations. At least a majority of the Trustees shall at all times
be Independent Trustees. The range in the authorized number of Trustees
may be changed by vote of Shareholders holding or having the right to vote
a majority of the Shares, provided that the exact number of Trustees within
such range shall be specified by the Trustees from time to time. There
shall be no cumulative voting in the election of Trustees. Trustees may be
reelected without limit as to the number of times. A Trustee shall be an
individual at least 21 years of age who is not under legal disability.
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 or any specified portion of their time to the business and affairs of
the Trust.
3.2 ELECTION OF TRUSTEES. The initial Trustees shall be elected at
the annual meeting of the Shareholders, except as provided in Sections 3.4
or 3.5, and each Trustee elected shall hold office until the next annual
meeting of the Shareholders of the Trust and until his or her successor is
duly elected and qualified, or until his or her death or retirement or
until he or she resigns or is removed in the manner hereinafter provided.
Such election shall be by written ballot.
3.3 COMPENSATION AND OTHER REMUNERATION. Each Independent Trustee
shall be entitled to receive $20,000 per year for his or her services as an
Independent Trustee plus $1,000 for each meeting of the Board attended in
person and $500 per hour for each meeting of the Board attended via
telephonic conference call. The compensation payable to the Trustees for
their services hereunder may be increased or decreased upon the affirmative
vote of the holders of a majority of Shares at an Annual Meeting of Share-
holders or a special meeting of Shareholders called for that purpose. The
Trustees shall be reimbursed for their reasonable expenses incurred in
connection with their services as Trustees, including, without limitation,
travel to and attendance at meetings of the Board of Trustees and Annual
Meetings of Shareholders.
3.4 RESIGNATION, REMOVAL AND DEATH OF TRUSTEES. A Trustee may
resign at any time by giving written notice to the remaining Trustees.
Such resignation shall take effect on the date such notice is given or at
any later time specified in the notice. A Trustee may be removed at any
time with or without cause by vote or written consent of Shareholders
holding or having the right to vote a majority of the outstanding Shares,
and can be removed at a special meeting pursuant to Section 7.7 herein,
unless the designations of any Preferred Shares require otherwise, in which
case the terms of the designations shall prevail. A Trustee may also be
removed with cause by a majority of the remaining Trustees, unless the
designations of any Preferred Shares require otherwise, in which case the
terms of the designations shall prevail. For purposes of the immediately
preceding sentence "cause" shall include, without limitation, any 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.
Upon the resignation or removal of any Trustee, or his otherwise ceasing to
be a Trustee, he shall execute and deliver such documents, if any, as the
remaining Trustees shall reasonably require for the conveyance of any Trust
property held in his name, shall account to the remaining 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, if any, 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.
3.5 VACANCIES. If any or all of the Trustees cease to be Trustees
hereunder, whether by reason of resignation, 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
may exercise the power of the Trustees hereunder. Vacancies among the
Trustees (including vacancies created by increases in the number of
Trustees) shall be filled by a majority of the remaining Trustees, unless
the designations of any Preferred Shares require otherwise, in which case
the terms of the designations shall prevail. If at any time there shall be
no Trustees in office, successor Trustees shall be elected by the
Shareholders as provided in Section 7.7, unless the designations of any
Preferred Shares require otherwise, in which case the terms of the
designations shall prevail.
3.6 SUCCESSOR AND ADDITIONAL TRUSTEES. The right, title and
interest of the Trustees in and to the Trust property, 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 3.4 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 Trust 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.
3.7 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 acquisition of
any investment shall require the approval of the majority of the 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 approved in the
By-Laws, if the same are adopted. 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 shall be
held at least four times per year at such 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 upon
the request of any two Trustees and may be called by the Chairman 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 shall 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 De-
claration.
3.8 INDEPENDENT TRUSTEES. In order that a majority of the Trustees
shall at all times be Independent Trustees, if, at any time, by reason of
one or more vacancies, there shall not be such a majority, then within 90
days after such vacancy occurs, the continuing Independent Trustee or
Trustees then in office shall appoint, pursuant to Section 3.5, a
sufficient number of other persons who are Independent Trustees, so that
there shall be such a majority.
3.9 COMMITTEES. The Trustees may appoint from among their number
an executive committee and such other standing committees, including
without limitation, audit and nominating committees, or special committees
as the Trustees determine. Each standing committee shall consist of three
or more members, a majority of whom shall be Independent 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
deem necessary and appropriate.
3.10 RESIGNATION OF INDEPENDENT TRUSTEES. In the event that a
person elected as an Independent Trustee ceases to be an Independent
Trustee, and if, as a result, a majority of Trustees are no longer
Independent Trustees, such person shall immediately resign as a Trustee and
such vacancy shall be filled in a manner consistent with Sections 3.5, 3.6
and 3.8 hereof.
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 of 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 and each such determination and the
basis therefor shall be set forth in the minutes of meetings of the
Trustees. In construing the provisions of this Declaration, the
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 by statute or rule of law
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 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 person affiliated with the Trust;
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 possess and exercise all the rights, powers and
privileges appertaining to the ownership of any or all 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;
4.2.10 to enter into joint ventures, general or limited
partnerships and any other lawful combinations or associations;
4.2.11 to elect or appoint officers of the Trust (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, if adopted, or as may pertain to such offices;
4.2.12 [reserved];
4.2.13 subject to the provisions of Sections 8.5 and 8.6, to
engage or employ any persons as agents, representatives, employees or
independent contractors (including without limitation, real estate
advisors, investment advisors, 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, doubtful collection, or obsolescence in respect
of all or any part of the Trust Estate subject to depreciation,
amortization, collection, 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 changed
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;
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, con-
troversies, demands or other litigation relating to the Trust, the Trust
Estate or the Trust's affairs, to enter into agreement 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 subject to Section 8.4 below, 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 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 an accounting method for the Trust, and from
time to time to change such accounting method, and to engage a firm of
independent certified 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 in any
appropriate evidence 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 cash distributions to Shareholders
as provided in Section 7.5, subject to any restrictions set forth in the
designations of any Preferred Shares;
4.2.24 to adopt a 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, subject to any restrictions set forth in
the designations of any Preferred Shares;
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, subject to any restrictions set forth in the designations of any
Preferred Shares;
4.2.27 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 as
a real estate investment trust for federal income tax purposes, and to take
all action deemed by the Trustees appropriate in connection with main-
taining or ceasing to maintain such qualification;
4.2.28 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; and
4.2.29 in the event that either (a) the assets of the Trust
would constitute "plan assets" for purposes of ERISA or (b) the
transactions contemplate hereunder would constitute "prohibited
transactions" under ERISA or the Code and an exemption for such
transactions is not obtainable, or not sought by the Trustees, from the
United States Department of Labor, to (1) restructure the Trust's
activities to the extent necessary to comply with any exemption in any
final plan asset regulation adopted by the Department of Labor or to comply
with any requirement the Department of Labor might impose as a condition to
granting a prohibited transaction exemption, and/or (2) terminate the
offering of Shares or compel a dissolution and termination of the Trust.
The Trustees are empowered to amend such provisions to the minimum extent
they believe is necessary in accordance with the advice of accountants
and/or counsel to comply with any applicable federal or state legislation,
rules, regulations, administrative pronouncements or interpretations and/or
judicial interpretations thereof after the date of this Declaration. Such
amendment(s) made by the Trustees in reliance upon the advice of competent
accountants or counsel described above shall be deemed to be made pursuant
to the fiduciary obligation of the Trustees to the Trust and Shareholders,
and no such amendment shall give rise to any claim or cause of action by
any Shareholder.
4.3 INVESTMENT OPPORTUNITIES. All Trustees must present investment
opportunities which comply with the Trust's investment policies to the
Trust prior to engaging in such investments themselves.
4.4 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 incon-
sistent with law or with this Declaration. Such By-Laws may provide for
the appointment of assistant officers or agents of the Trust, subject,
however, to the right of the Trustees to remove or discharge such officers
or agents.
ARTICLE V
EMPLOYEES AND AGENTS
5.1 EMPLOYMENT OF EMPLOYEES AND AGENTS. 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, advisors, managers or independent contractors of the Trust as
may be necessary to insure that such business conforms to the provisions of
this Declaration. However, the Trustees shall have the power and may, but
are not obligated to, appoint, employ or contract with any person 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; provided, however, that any such delegation shall
not preclude the qualification of the Trust as a REIT under the Code. No
advisory contract with an Affiliate shall be entered into or renewed
without the approval of a majority of the Trustees.
It shall be the duty of the Trustees to monitor the administrative
procedures, investment operations, and performance of the Trust, and to
determine from time to time but at least annually that the total fees and
expenses of the Trust are reasonable in light of the investment experience
of the Trust, its Net Assets, its Net Income, and the fees and expenses of
other comparable advisors in real estate, with each such determination
reflected in the minutes of the Trustees' meetings.
The Trustees, subject to the approval of a majority of the
Independent Trustees, shall have the power to determine the terms and
compensation of any person whom they may employ or with whom they may
contract.
5.2 [Reserved].
5.3 [Reserved].
5.4 [Reserved].
5.5 [Reserved].
ARTICLE VI
PROHIBITED ACTIVITIES
6.1 PROHIBITED INVESTMENTS AND ACTIVITIES. The Trust shall not
engage in any of the following investment practices or activities:
6.1.1 invest in any foreign currency, bullion or commodities
or commodities future, contracts or effect short sales of commodities or
securities;
6.1.2 invest in contracts for the sale of real estate unless
such contracts are recordable in the chain of title;
6.1.3 issue (a) "redeemable securities," "face amount
certificates of the installment type" or "periodic payment plan
certificates," all as defined in the Investment Company Act of 1940, (b)
[reserved], (c) nonvoting or assessable securities (other than debt
securities), and (d) convertible or nonconvertible debt securities to the
public unless the historical cash flow of the Trust or the substantiated
future cash flow of the Trust, excluding extraordinary items, is sufficient
to cover the interest of the debt securities;
6.1.4 Grant options, warrants or rights to purchase Shares at
exercise prices less than the fair market value of such Shares on the date
of grant and for consideration (which may include services) that in the
judgment of the Trustees has a market value less than the value of such
option, warrant or right on the date of grant; any such options, warrants
or rights to purchase Shares issued to the Trustees or their Affiliates
shall be on the same terms as those sold to the public and shall not exceed
an amount equal to 10% of the number of outstanding Shares on the date of
the grant;
6.1.5 engage in underwriting or the agency distribution of
securities issued by others;
6.1.6 invest more than 10% of Total Assets of the Trust in
Unimproved Real Property or indebtedness secured by a deed of trust or
Mortgage Loans on Unimproved Real Property;
6.1.7 engage in trading, as compared with investment,
activities or in any other activity which would have the effect of causing
the Trust to fail to qualify as a REIT under the Code;
6.1.8 [Reserved].
6.1.9 acquire securities in any company holding investments or
engaging in activities prohibited by this Section 6.1;
6.1.10 the Trust may not make junior Mortgage Loans except
where the principal amount of such junior Mortgage Loans (excluding
interest and working capital and interest reserves) plus the outstanding
amount of senior debt does not exceed 85% of the As-Built Appraised Value
of the Property, unless a majority of the Independent Trustees determine
that an increased amount is justified by additional credit or collateral;
the Trust may not make a junior Mortgage Loan which is subordinate to a
mortgage held by the Trustees or Affiliates of the Trust;
6.1.11 purchase property from Affiliates, unless (i) a
majority of the Trustees not otherwise interested in such transaction
approve the transaction as being fair and reasonable to the Trust and at a
price to the Trust no greater than the cost of the asset to such Trustee or
Affiliate, or, (ii) if the price to the Trust is in excess of such costs,
that substantial justification for such excess exists and such excess is
not unreasonable; in no event shall the cost of such asset to the Trust
exceed its current appraised value as determined by a qualified independent
real estate appraiser selected by the Trustees not otherwise interested in
such transaction; or (b) sell property to Affiliates;
6.1.12 borrow funds from any Affiliate unless the interest and
other financing charges or fees received by the Affiliate does not exceed
the amount which would be charged by unrelated lending institutions on
comparable loans for the same purpose;
6.1.13 purchase insurance either through or from any
Affiliate, unless: (i) before a master insurance policy covering all the
Trust's assets is placed through such brokerage services, there will have
been received quotations from two independent insurance brokers relating to
the proposed coverage, which quotations shall be upon coverage and terms
comparable to those proposed to be provided by the Affiliate, and such
Affiliate shall not provide such insurance brokerage services unless it can
obtain such insurance at a cost which is no greater than the lowest of the
two unaffiliated insurance agency quotations for such master insurance
policy; and (ii) if at any time the Affiliates cease to derive at least 75%
of their business from insurance commissions with respect to insurance
written for individuals, partnerships, corporations, trusts or other
entities which are not Affiliates of the Trust, the Affiliates shall not
write any further insurance on behalf of the Trust or on properties then
owned by it;
6.1.14 invest in equity securities of any nongovernmental
issuer, including other REITs or limited partnerships, for a holding period
in excess of 18 months; or
6.1.15 issue its Shares on a deferred payments basis or other
similar arrangement.
6.2 OBLIGOR'S DEFAULT. Notwithstanding any provision in any
Article of this Declaration, when an obligor to the Trust is in default
under the terms of any obligation to the Trust, the Trustees shall have the
power to pursue any remedies permitted by law which in their sole judgment
are in the interest of the Trust and the Trustees shall have the power to
enter into any necessary investment, commitment or obligation of the Trust
resulting from the pursuit of such remedies that are necessary or desirable
to dispose of property acquired in the pursuit of such remedies.
6.3 PERCENTAGE DETERMINATIONS. Whenever standards contained in
this Article VI are expressed in terms of a percentage, whether of value,
total assets, cost or otherwise, such percentage shall be determined at
the time of the approval of a Mortgage Loan by the Trust for a transaction
covered by such standard hereunder.
ARTICLE VII
SHARES AND SHAREHOLDERS
7.1 TRUST ESTATE. The beneficial interest in the Trust shall be
divided into shares of beneficial interest. The Trust shall have authority
to issue an unlimited number of common shares of beneficial interest, no
par value per share (the "Shares"), and two million preferred shares of
beneficial interest, no par value per share (the "Preferred Shares"). The
Preferred Shares may be issued on such rights, preferences and designations
as determined by the Trustees, including without limitation such rights,
preferences and designations which grant the holders of Preferred Shares
rights in the Trust Estate superior to those rights of the holders of
Shares. The Shares and Preferred Shares may be issued for such
consideration as the Trustees shall determine, including, upon the
conversion of convertible debt, or by way of share distribution or share
split in the discretion of the Trustees. Subject to Section 7.12 hereof,
outstanding Shares or Preferred Shares shall be transferrable and
assignable in like manner as are shares of common stock or preferred stock
of a Massachusetts business corporation. Shares or Preferred Shares
reacquired by the Trust shall no longer be deemed outstanding and shall
have no voting or other rights unless and until reissued. Shares or
Preferred Shares reacquired by the Trust may be cancelled by action of the
Trustees. All Shares or Preferred Shares shall be fully paid and non-
assessable 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 distribution, split, or upon the conversion of convertible
debt. Neither the Shares nor the Preferred Shares shall entitle the holder
to preference, preemptive, conversion or exchange rights of any kind,
except as the Trustees may specifically determine with respect to any
Shares or Preferred Shares at the time of issuance of such shares, as set
forth in the applicable designations (in the case of Preferred Shares), and
except as specifically required by law.
7.2 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.
7.3 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.
7.4 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 certificates, if
any, representing the Shares, and in which there shall be recorded all
transfers of Shares. The persons in whose names Shares are so recorded
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 distributions payable or deliverable in respect of such
Shares.
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.
Any issuance, redemption or transfer of Shares which would operate to
disqualify the Trust as a real estate investment trust for federal income
tax purposes, is null and void, and such transaction will be cancelled when
so determined in good faith by the Trustees.
7.5 DISTRIBUTIONS TO SHAREHOLDERS. The Trustees shall declare and
pay to Shareholders quarterly distributions in cash, out of current or
accumulated income, capital, capital gains, principal, surplus, proceeds
from the increase or refinancing of Trust obligations, from 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 within 45 days after the last day of each fiscal quarter during
which the "real estate investment trust taxable income" (as defined in Code
Section 856(b)(2)) of the Trust was greater than zero; 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 distribution unless and until
declared by the Trustees. The date for determining the Shareholders who
are entitled to participate in such distributions shall be such date as the
Trustees shall designate. The Trustees shall furnish the Shareholders at
the time of each such distribution with a statement in writing advising as
to the source of the funds so distributed or, if the source thereof has not
then been determined, a written statement disclosing the source shall be
sent to each Shareholder who received the distribution not later than 75
days after the close of the fiscal year in which the distribution was made.
7.6 TRANSFER AGENT, DISTRIBUTION, DISBURSING AGENT AND REGISTRAR.
The Trustees shall have power to employ one or more transfer agents,
distribution disbursing agents, distribution reinvestment plan agents and
registrars and to authorize them on behalf of the Trust to keep records, to
hold and disburse any distributions and to have and perform powers and
duties customarily had and performed by transfer agents, distribution
disbursing agents, distribution reinvestment plan agents and registrar as
may be conferred upon them by the Trustees.
7.7 SHAREHOLDERS' MEETINGS AND CONSENTS. The Trustees shall cause
to be called and held an Annual Meeting of Shareholders at such time and
such place as they may determine, at which Trustees shall be elected and
any other proper business may be conducted. The Annual Meeting of
Shareholders shall be held within six months after the end of each fiscal
year, 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 not less
than 30 days 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, and shall be called by the Board of Trustees
upon the written request of Shareholders holding or having the right to
vote not less than 10% of the outstanding Shares of the Trust. Within 45
days after receipt of a written request either in person or by registered
mail stating the purpose 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 20 days nor more than 60 days before the date of such meeting,
at a time and place convenient to Shareholders. 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. If there shall be no
Trustees, a special meeting of the Shareholders shall be held promptly for
the election of successor Trustees. Notwithstanding anything contained in
this Section 7.7 to the contrary, the Trustees may grant to the holders of
Preferred Shares the right to call a special meeting, as set forth in the
designations of the applicable Preferred Shares.
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 the holders of a majority of the
outstanding Shares entitled to vote thereon or such larger proportion
thereof as would be required for a vote of Shareholders at a meeting. Any
written consent may be revoked by a writing received by the Trust prior to,
but not after, the time that written consents of the number of Shares
required to authorize the proposed action have been filed with the Trust.
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, pledging, hypothecating, granting security interests in,
mortgaging, encumbering or leasing by the Trustees of less taken half of
the assets of the Trust or upon the liquidation and dissolution of the
Trust in the ordinary course.
7.8 PROXIES. Whenever the vote or consent of Shareholders is
required or permitted under this Declaration, such vote or consent may be
given 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. A Shareholder
may authorize another person or persons to act for him or her as proxy by
transmitting or authorizing the transmission of a telegram, cablegram or
other means of electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation, proxy support service organization
or like agent duly authorized by the person or persons who will be the
holder of the proxy to receive the transmission, provided that any
telegram, cablegram, or electronic transmission must either set forth or be
submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
Shareholder. For these purposes, "electronic transmission" shall mean any
process of communicating that is suitable for retaining, retrieving and
reproducing information by the recipient in a manner that does not directly
involve the physical transfer of paper, including telephonic delivery
pursuant to procedures adopted by the Board of Trustees.
7.9 REPORTS TO SHAREHOLDERS. The Trustees shall cause to be
prepared and mailed to the Shareholders not later than 120 days after the
close of each fiscal year of the Trust, and in any event not less than 15
days prior to the Trust's annual meeting of Shareholders, a report of the
business and operation of the Trust during such fiscal year, 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) a balance sheet, an income
statement and a statement of changes in financial position, each prepared
in accordance with generally accepted accounting principles, shall be
audited by an independent certified public accountant thereon, and shall be
accompanied by the report of such accountant thereon; and (b) a description
of the material terms and circumstances of any transactions between the
Trust and any Trustee, officer or Affiliate, including, without limitation,
purchases from loans to or from or joint ventures with the Trust, and a
statement that a majority of the Trustees and a majority of the
disinterested Trustees determined that such transactions were fair and
reasonable to the Trust and on terms not less favorable than those
available from unaffiliated third parties.
7.10 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 for the purpose of any other action, the Trustees
shall fix a date not more than 60 days prior to the date of any meeting of
Shareholders or distribution 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 take any other action. Any Shareholder who was a
Shareholder at the time so fixed shall be entitled to vote at such meeting
or adjournment thereof 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 take such other action. The provisions of this
Section 7.10 shall not limit the rights of holders of Preferred Shares to
vote at any special meeting, as set forth in the designations of the
applicable Preferred Shares.
7.11 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, is
delivered in person to such Shareholder or by electronic transmission to a
Shareholder that has previously, in writing, consented to the electronic
transmission of notice and the Trust obtains evidence that the Shareholder
actually received the information by electronic mail return receipt. For
these purposes, "electronic transmission" shall have the meaning described
in Article VII, Section 7.8.
7.12 SHAREHOLDERS' DISCLOSURE; TRUSTEES' RIGHT TO REFUSE TO TRANSFER
SHARES; LIMITATION ON HOLDINGS; REDEMPTION OF SHARES.
7.12.1 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
Sections 856-860 of the Code or to comply with the requirements of any
taxing authority or governmental agency.
7.12.2 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 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 and, in
connection therewith, if 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.
7.12.3 Notwithstanding any other provision of this Declaration
of Trust to the contrary and subject to the provisions of subsection
7.12.5, no person shall at any time directly or indirectly acquire
ownership in the aggregate of more than 9.9% 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 7.12, "person" shall have the meaning set forth in
Section 7701(a)(1) of the Code, and shall also mean any partnership,
limited partnership, syndicate or other group deemed to be a "person"
pursuant to Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended; and a person shall be deemed to own (a) Shares actually owned by
such person, (b) Shares constructively owned by such person after applying
the rules of Section 544 of the Code, and (c) Shares of which such person
is beneficial owner as defined in Rule 13d-3 promulgated under the
Securities Exchange Act of 1934. 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 than the Limit.
7.12.4 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 and asked prices, in each case during the 30 calendar 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 calendar 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 be 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 liquidation 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 payments; 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
rescission would jeopardize the tax status of the Trust as a REIT then the
Trust shall in lieu of rescission make immediate payment of the redemption
price.
7.12.5 The Limit set forth in Section 7.12.3 shall not apply
to acquisitions of 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 a majority 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.
7.12.6 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 assurance acceptable to the
Trustees that the qualification of the Trust as a REIT would not be
jeopardized thereby.
7.12.7 Notwithstanding any other provisions 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, ab initio.
7.12.8 Nothing contained in this Section 7.12 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 Section 856-860 of the Code.
7.12.9 If any provision of this Section 7.12 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 extend necessary to comply
with the determination of such court. To the extent this Section 7.12 may
be inconsistent with any other provision of this Declaration of Trust, this
Section 7.12 shall be controlling.
7.13 INSPECTION BY SHAREHOLDERS. The Trust will maintain a list of
the names and addresses of all Shareholders as part of its books and
records. Inspection of the Trust's books and records (including a list of
Shareholders) by a state securities administrator shall be permitted upon
request upon reasonable notice and during normal business hours.
Inspection of the books and records of the Trust by the Shareholders shall
be permitted to the same extent as permitted under the laws of the
Commonwealth of Massachusetts applicable to business corporations.
ARTICLE VIII
LIABILITY OF TRUSTEES, SHAREHOLDERS
AND OFFICERS, AND OTHER MATTERS
8.1 LIMITATION OF LIABILITY OF TRUSTEES AND OFFICERS. The Trustees
of the Trust shall be deemed to be in a fiduciary relationship to the
Shareholders. No Trustee, officer, employee or other agent 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, agent or employee
of the Trust or be held to any personal liability whatsoever in tort,
contract or otherwise, in connection with the affairs of this Trust if it
is determined that such person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of
the Trust, unless such liability was the result of gross negligence or
misconduct by the person.
8.2 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 8.1, no Trustee,
officer or Shareholder shall 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.
8.3 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 of such obligation. The omission of this provision from 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.
8.4 INDEMNIFICATION. 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, officer,
employee or other agent acting on behalf of the Trust shall be indemnified
and held harmless by the Trust against any losses, judgments, liabilities,
expenses and amounts paid in settlement of any claim sustained by them in
connection with the Trust, provided that (a) such person has determined, in
good faith, that the course of conduct which caused the loss or liability
was in the best interests of the Trust, (b) such liability or loss was not
the result of gross negligence or misconduct by such person, and (c) such
indemnification or agreement to hold harmless is recoverable only out of
the assets of the Trust and not from the personal assets of any
Shareholder. Indemnification will not be allowed for any liability imposed
by judgment, and costs associated therewith, including attorneys' fees,
arising from or out of a violation of state or federal securities laws
associated with the offer and sale of the Shares. Indemnification will not
be allowed for losses, liabilities, settlements and related expenses of
lawsuits alleging securities law violations unless (1) a court approves the
settlement and finds that indemnification of the settlement and related
costs should be made, or (2) there has been a dismissal with prejudice or a
successful adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee. Any person
seeking indemnification shall apprise the court of the position of the
Securities and Exchange Commission and the Massachusetts Securities
Division with respect to indemnification for securities law violations,
before seeking court approval for indemnification. The Trust may advance
funds to any person for legal expenses and other costs incurred as a result
of a legal action initiated against the person if (i) the legal action
relates to the performance of duties or services by the person on behalf
of the Trust; and (ii) such person agrees in writing to repay the advanced
funds to the Trust if it is ultimately determined that he or she is not
entitled to indemnification by the Trust as authorized herein. The rights
accruing to any person under these provisions shall not exclude any other
right to which he or she may be lawfully entitled, nor shall anything
contained herein restrict the right of any person 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, including the Trustees, but the Trust shall not incur
the cost of that portion of liability insurance which insures any party
against any liability for which he or she could not be indemnified under
this Declaration.
8.5 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 investment in,
for his own account or for the account of others, interests in real
property or persons engaged in the real estate business. Subject to the
provisions of Article V and Section 3.10, 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.
8.6 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 Independent Trustees who are not
interested parties in the transactions after a determination by them that:
8.6.1 the transaction is fair and reasonable to the Trust and
its Shareholders;
8.6.2 the terms of such transaction are at least as favorable
as the terms of any comparable transactions made on an arm's length basis;
8.6.3 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:
a. the compensation is not in excess of their compensation
paid for any comparable services; and
b. 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.
8.7 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.
ARTICLE IX
DURATION, TERMINATION, AMENDMENT
AND REORGANIZATION OF TRUST
9.1 DURATION AND TERMINATION OF TRUST. The duration of the Trust
shall be perpetual unless a majority of the Trustees shall determine that
the Trust should be terminated and liquidated. Any determination by the
Trustees of the date upon which termination shall occur shall be reflected
in a vote of or written instrument signed by a majority of all of the
Trustees then in office, including a majority of the Independent Trustees;
provided that the Trust shall be subject to termination at any time by the
vote or consent of Shareholders holding or having the right to vote a
majority of the outstanding Shares entitled to vote thereon.
9.1.1 Upon the termination of the Trust;
a. the Trust shall carry on no business except for the
purpose of winding up its affairs;
b. 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 trustee or agent or other entity to perform one or
more of the foregoing functions); and
c. 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, and
after payment in full of the liquidation preferences to holders of any
Preferred Shares as required under the applicable designations of Preferred
Shares, the Trustees 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 Shareholders
holding or having the right to vote two-thirds of the outstanding Shares
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 such plan.
9.1.2 After termination of the Trust and distribution to the
Shareholders as provided herein or in any such plan so approved by the
Shareholders, the Trustees shall execute and include 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.
9.2 MERGER, ETC. Upon the vote or written consent of a majority of
the Trustees, and with the approval of Shareholders holding or having the
right to vote two-thirds of the Shares then outstanding, 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, which may or
may not be a subsidiary of the Trust, 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 this Section 9 and in
compliance with the designations of any Preferred Shares, distribute such
shares, securities, beneficial interests or other consideration ratably
among the Shareholders in redemption of their Shares; provided, however,
that: (i) the Shareholders would, thereafter, be the sole equity owners of
such entity; and (ii) such entity and the Shareholders would thereafter be
subject to federal income tax in much the same manner as they were so long
as the Trust qualified as a REIT.
9.3 AMENDMENT PROCEDURE. This Declaration may be amended by the
vote or written consent of a majority of the Trustees and of Shareholders
holding or having the right to vote a majority of the outstanding Shares;
provided, however, that no amendment which would reduce the priority of
payment or amount payable to holders of Shares of the Trust upon
liquidation of the Trust or that would diminish or eliminate any voting
rights pertaining to holders of Shares shall be made unless approved by the
vote or consent of Shareholders holding or having the right to vote two-
thirds of the outstanding Shares; provided further, however, that a
majority of the Trustees without the vote or consent of Shareholders may at
any time amend the Declaration to the extent deemed by the Trustees in good
faith to be necessary (i) to clarify any ambiguities or correct any
inconsistencies; (ii) to meet the requirements for qualification as a real
estate investment trust under Sections 856-860 of the 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;
(iii) (a) to restructure the Trust's activities to the extent necessary to
comply with any exemption in the final plan asset regulation adopted by the
Department of Labor, including establishing a fixed percentage of Shares
permitted to be held by Qualified Plans or other Tax-Exempt Entities,
discontinuing sales to such investors after a given date as necessary to
obtain a prohibited transaction exemption from the Department of Labor
and/or (b) to terminate the offering or to compel a dissolution and
termination of the Trust. Actions by the Trustees pursuant to the third
paragraph of Section 1.1 hereof or pursuant to Subsection 10.3.1 hereof
that result in amending this Declaration may also be effected without vote
or consent of any Shareholder.
ARTICLE X
MISCELLANEOUS
10.1 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 such 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 such 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.
10.2 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 any 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
gender and the neuter. Headings are placed herein for convenience of
reference only and shall not be taken as a 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.
10.3 PROVISIONS OF THE TRUST IN CONFLICT WITH LAW OR REGULATIONS.
10.3.1 The provisions of this Declaration are severable and if
a majority of the Trustees shall determine, with the advice of counsel,
that any one or more of such provision (the "Conflicting Provisions") would
have the effect of preventing the Trust from qualifying as a real estate
investment trust under Sections 856-860 of the Code (and if the Trustees
have determined the Trust should elect to be taxed as a REIT under the
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 included in the records of the Trust. The Trustees
shall not be liable for failure to make any determination under this
Section 10.3.1. Nothing in this Section 10.3.1 shall in any way limit or
affect the right of the Trustees to amend this Declaration as provided in
Section 9.3.
10.3.2 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.
10.4 BINDING EFFECT; SUCCESSOR 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 each of their respective successors, assigns,
heirs, distributees and legal representatives.
ADDRESSES OF TRUSTEES
---------------------
Walter E. Auch, Sr.
c/o Banyan Strategic Realty Trust
150 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
Norman M. Gold
c/o Banyan Strategic Realty Trust
150 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
Marvin A. Sotoloff
c/o Banyan Strategic Realty Trust
150 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
Leonard G. Levine
c/o Banyan Strategic Realty Trust
150 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
387959
CERTIFICATE
The undersigned, being the duly elected, qualified and acting
President of Banyan Strategic Realty Trust, a Massachusetts business trust
("BSRT"), and as President having authority to certify as true and correct
resolutions of the board of trustees of BSRT (the "Trustees"), does hereby
certify that the Trustees have adopted and approved the amendments to the
Amended and Restated Declaration of Trust of BSRT reflected in the Third
Amended and Restated Declaration of Trust of BSRT, and that these
amendments were approved by BSRT's shareholders at the Annual Meeting of
Shareholders held December 13, 1999, as subsequently adjourned.
IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of
December, 1999.
------------------------------
Leonard G. Levine
President