EXHIBIT 3.2
LIBERTY PROPERTY TRUST
ARTICLES OF RESTATEMENT
THIS IS TO CERTIFY THAT:
FIRST: The Declaration of Trust of Liberty Property Trust, a
Maryland real estate investment trust (the "Trust"), is hereby restated.
SECOND: The following provisions are all of the provisions of
the Trust currently in effect:
"ARTICLE I
THE TRUST; DEFINITIONS
SECTION 1.1 The name of the trust (hereinafter called the
"Trust") is:
LIBERTY PROPERTY TRUST
So far as may be practicable, the business of the Trust shall be
conducted and transacted under that name, which name (and the word
"Trust" wherever used in this Declaration of Trust, except where the
context otherwise requires) shall refer to the Trustees collectively but
not individually or personally and shall not refer to the Shareholders
of the Trust, or to any officers, employees or agents of the Trust or of
such Trustees.
Under circumstances in which the Trustees determine that the use
of the name "Liberty Property Trust" is not practicable or desirable,
they may use any other designation or name for the Trust.
SECTION 1.2 Resident Agent. The Trust may have such offices or
places of business within or without the State of Maryland as the
Trustees may from time to time determine.
SECTION 1.3 Nature of Trust. The Trust is a real estate
investment trust within the meaning of Title 8. The Trust shall not be
deemed to be a general partnership, limited partnership, joint venture,
joint stock company or, except as provided in Section 12.4, a
corporation (but nothing herein shall preclude the Trust from being
treated for tax purposes as an association under the Code).
SECTION 1.4 Powers. The Trust shall have all of the powers
granted to real estate investment trusts generally by Title 8 or any
successor statute and shall have any other and further powers as are not
1
inconsistent with and are appropriate to promote and attain the purposes
set forth in this Declaration of Trust.
SECTION 1.5 Definitions. As used in this Declaration of Trust,
the following terms shall have the following meanings unless the context
otherwise requires:
"Adviser" means the Person, if any, appointed, employed or
contracted with by the Trust pursuant to Section 4.1.
"Affiliate" or "Affiliated" means, as to any individual,
corporation, partnership, trust or other association (other than the
Trust), any Person (i) who is an officer, director, partner or trustee
of such corporation, partnership, trust or other association or of any
Person which controls, is controlled by, or is under common control
with, such individual, corporation, partnership, trust or other
association or (ii) which controls, is controlled by, or is under common
control with, such individual, corporation, partnership, trust or other
association.
"Bylaws" means the Bylaws of the Trust as the same may be
amended from time to time.
"Excluded Assets" shall have the meaning ascribed to the term
"Non-REIT Assets" in the Company's Registration Statement on Form S-11
relating to the Company's Initial Public Offering (as such term is
defined in Section 7.1).
"Mortgages" means mortgages, deeds of trust or other security
interests in or applicable to Real Property.
"Operating Partnership" means Liberty Property Limited
Partnership, a Pennsylvania limited partnership.
"Person" means an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of
the Code), a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of
the Code, joint stock company or other entity, or any government and
agency or political subdivision thereof, and also includes a group as
that term is used for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
"Real Property" or "Real Estate" means land, rights in land
(including leasehold interests), and any buildings, structures,
improvements, furnishings, fixtures and equipment located on or used in
connection with land and rights or interests in land.
2
"REIT Provisions of the Code" means Sections 856 through 858 of
the Code 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.
"Rouse Affiliates" means the Rouse Senior Executives and their
respective Affiliates and associates, present or future, including,
without limitation, any other Person acting in concert or as a group
with any of the foregoing Persons.
"Rouse Group" means Rouse & Associates and the partnerships,
corporations and other entities in which Rouse & Associates and/or its
Affiliates have a controlling interest, which the Trust acquires on or
prior to the Closing Date of the Initial Public Offering.
"Rouse Senior Executives" means Willard G. Rouse III, George F.
Congdon and Joseph P. Denny, together with David C. Hammers, Leslie Reid
Price, Robert E. Fenza, Claiborn M. Carr, John A. Castorina, Jill R.
Felix, Larry Gildea and Robert Goldschmidt.
"Securities" means Shares, any stock, shares or other evidences
of equity or beneficial or other interests, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, 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.
"Securities of the Trust" means any Securities issued by the
Trust.
"Shareholders" means holders of record of outstanding Shares.
"Shares" means transferable shares of beneficial interest of the
Trust of any class or series.
"Trustees" means, collectively, the individuals named in Section
2.2 of this Declaration so long as they continue in office and all other
individuals who have been duly elected and qualified as trustees of the
Trust hereunder.
"Trust Property" means any and all property, real, personal or
otherwise, tangible or intangible, which is transferred or conveyed to
the Trust or the Trustees (including all rents, income, profits and
gains therefrom), which is owned or held by, or for the account of, the
Trust or the Trustees.
3
ARTICLE II
TRUSTEES
SECTION 2.1 Number. Prior to the Closing Date of the Initial
Public Offering (as such term is defined in Section 7.1) the number of
Trustees initially shall be seven (7) which number may thereafter be
increased or decreased only by the unanimous vote of the Trustees then
in office from time to time; however, the total number of Trustees shall
be not fewer than three (3) and not more than fifteen (15). No reduction
in the number of Trustees shall cause the removal of any Trustee from
office prior to the expiration of his term.
SECTION 2.2 Board; Term. The Trustees shall be classified, with
respect to the time for which they severally hold office, into three
classes (individually, a "Class" and collectively, "Classes"), Class I,
Class II and Class III, with approximately one-third of the total number
of Trustees in each class as determined by the Trustees.
At the next Annual Meeting of Shareholders and at each annual
meeting of the Shareholders thereafter, the successors to the Class of
Trustees whose term expires at such meeting shall be elected to hold
office for a term expiring at the annual meeting of Shareholders held in
the third year following the year of their election and until their
successors are duly elected and qualified.
At all times, at least a majority of the members of the Board of
Trustees shall be independent. A trustee shall be considered
"independent" hereunder if such individual is not an officer or an
employee of the Trust or any Affiliate of the Trust when serving as a
Trustee and if, at any time that the Common Shares are listed on the New
York Stock Exchange, such trustee would be "independent" as determined
pursuant to the applicable rules of the New York Stock Exchange;
provided, however, that if less than a majority of trustees are
independent (through resignation or otherwise), such circumstance shall
not cause the Trust to terminate or affect the powers of the remaining
trustees to fill vacancies pursuant to the Bylaws.
SECTION 2.3 Resignation; Removal or Death. Any Trustee may
resign by written notice to the remaining Trustees, effective upon
execution and delivery to the Trust of such written notice or upon any
future date specified in the notice. A Trustee may be removed from
office only at a meeting of shareholders called for that purpose by the
affirmative vote of the holders of not less than two-thirds of the
Shares then outstanding and entitled to vote in the election of
Trustees. Upon the resignation or removal of any Trustee, or his
otherwise ceasing to be a Trustee, he shall automatically cease to have
any right, title or interest in
4
and to the Trust Property and shall execute and deliver such documents
as the remaining Trustees require for the conveyance of any Trust
Property held in his name, and shall account to the remaining Trustees
as they require for all Property which he holds as Trustee. Upon the
incapacity or death of any Trustee, his legal representative shall
perform those acts.
SECTION 2.4 Legal Title. Legal title to all Trust Property shall
be vested in the Trustees, but they may cause legal title to any Trust
Property to be held by or in the name of any Trustee, or the Trust, or
any other Person as nominee. The right, title and interest of the
Trustees in and to the Trust Property shall automatically vest in
successor and additional Trustees upon their qualification and
acceptance of election or appointment as Trustees, and they shall
thereupon have all the rights and obligations of Trustees, whether or
not conveyancing documents have been executed and delivered pursuant to
Section 2.3 or otherwise. Written evidence of the qualification and
acceptance of election or appointment of successor and additional
Trustees may be filed with the records of the Trust and in such other
offices, agencies or places as the Trustees may deem necessary or
desirable.
ARTICLE III
POWERS OF TRUSTEES
SECTION 3.1 General. Subject to the express limitations herein
or in the Bylaws, (1) the business and affairs of the Trust shall be
managed under the direction of the Board of Trustees and (2) the
Trustees shall have full, exclusive and absolute power, control and
authority over the Trust Property and over the business of the Trust as
if they, in their own right, were the sole owners thereof. The Trustees
may take any actions as in their sole judgment and discretion are
necessary or desirable to conduct the business of the Trust. This
Declaration of Trust shall be construed with a presumption in favor of
the grant of power and authority to the Trustees. Any construction of
this Declaration of Trust or determination made in good faith by the
Trustees concerning their powers and authority hereunder shall be
conclusive. The enumeration and definition of particular powers of the
Trustees included in this Article III shall in no way be limited or
restricted by reference to or inference from the terms of this or any
other provision of this Declaration of Trust or construed or deemed by
inference or otherwise in any manner to exclude or limit the powers
conferred upon the Trustees under the general laws of the State of
Maryland as now or hereafter in force.
SECTION 3.2 Specific Powers and Authority. Subject only to the
express limitations herein (including, but not limited to, those set
forth in Section 9.5), and in addition to all other powers and authority
conferred by this Declaration of Trust or by law, the Trustees, without
any vote, action
5
or consent by the Shareholders, shall have and may exercise, at any time
or times, in the name of the Trust or on its behalf the following powers
and authorities:
(a) Investments. Subject to Article IX, to invest in,
purchase or otherwise acquire and to hold real, personal or mixed,
tangible or intangible, property of any kind (including, without
limitation, Securities and Mortgages) wherever located, or rights or
interests therein or in connection therewith, all without regard to
whether such property, interests or rights are authorized by law for the
investment of funds held by trustees or other fiduciaries, or whether
obligations the Trust acquires have a term greater or lesser than the
term of office of the Trustees or the possible termination of the Trust,
for such consideration as the Trustees may deem proper (including cash,
property of any kind or Securities of the Trust); provided, however,
that the Trustees shall take such actions as they deem necessary and
desirable to comply with any requirements of Title 8 relating to the
types of assets held by the Trust.
(b) Sale, Disposition and Use of Property. Subject to
Article V, Article IX and Section 10.3, to sell, rent, lease, hire,
exchange, release, partition, assign, mortgage, grant security interests
in, encumber, negotiate, dedicate, grant easements in and options with
respect to, convey, transfer (including transfers to entities wholly or
partially owned by the Trust or the Trustees) or otherwise dispose of
any or all of the Trust Property by deeds (including deeds in lieu of
foreclosure with or without consideration), trust deeds, assignments,
bills of sale, transfers, leases, mortgages, financing statements,
security agreements and other instruments for any of such purposes
executed and delivered for and on behalf of the Trust or the Trustees by
one or more of the Trustees or by a duly authorized officer, employee,
agent or nominee of the Trust, on such terms as they deem appropriate;
to give consents and make contracts relating to the Trust Property and
its use or other property or matters; to develop, improve, manage, use,
alter and otherwise deal with the Trust Property; and to rent, lease or
hire from others property of any kind; provided, however, that the Trust
may not use or apply land for any purposes not permitted by applicable
law.
(c) Financings. To borrow or in any other manner raise money
for the purposes and on the terms they determine, and to evidence the
same by issuance of Securities of the Trust, which may have such
provisions as the Trustees determine; to reacquire such Securities of
the Trust; to enter into other contracts or obligations on behalf of the
Trust; to guarantee, indemnify or act as surety with respect to payment
or performance of obligations of any Person; to mortgage, pledge,
assign, grant security interests in or otherwise encumber the Trust
Property to secure any such Securities of the Trust, contracts or
obligations (including guarantees, indemnifications and suretyships);
and to renew, modify,
6
release, compromise, extend, consolidate or cancel, in whole or in part,
any obligation to or of the Trust or participate in any reorganization
of obligors to the Trust.
(d) Loans. Subject to Article IX, to lend money or other
Trust Property on such terms, for such purposes and to such persons as
they may determine.
(e) Issuances of Securities. Subject to Article IX, to
create and authorize the issuance, in shares, units or amounts of one or
more types, series or classes, of Securities of the Trust, which may
have such voting rights, dividend or interest rates, preferences,
subordinations, conversion or redemption prices or rights, maturity
dates, distribution, exchange or liquidation rights or other rights as
the Trustees may determine, without vote of or other action by the
Shareholders; to issue any type of Securities of the Trust, and any
options, warrants or rights to subscribe therefor, all without vote of
or other action by the Shareholders, to such Persons for such
consideration, at such time or times and in such manner and on such
terms as the Trustees determine; to list any of the Securities of the
Trust on any securities exchange; and to purchase or otherwise acquire,
hold, cancel, reissue, sell and transfer any Securities of the Trust.
(f) Expenses and Taxes. To pay any charges, expenses or
liabilities necessary or desirable, in the sole discretion of the
Trustees, for carrying out the purposes of this Declaration of Trust and
conducting the business of the Trust, including compensation or fees to
Trustees, officers, employees and agents of the Trust, and to Persons
contracting with the Trust, and any taxes, levies, charges and
assessments of any kind imposed upon or chargeable against the Trust,
the Trust Property, or the Trustees in connection therewith; and to
prepare and file any tax returns, reports or other documents and take
any other appropriate action relating to the payment of any such
charges, expenses or liabilities.
(g) Collection and Enforcement. To collect, sue for and
receive money or other property due to the Trust; to consent to
extensions of the time for payment, or to the renewal, of any Securities
or obligations; to engage or intervene in, prosecute, defend, compound,
enforce, compromise, release, abandon or adjust any actions, suits,
proceedings, disputes, claims, demands, security interests, or things
relating to the Trust, the Trust Property, or the Trust's affairs; to
exercise any rights and enter into any agreements, and take any other
action necessary or desirable in connection with the foregoing.
(h) Deposits. To deposit funds or Securities constituting
part of the Trust Property in banks, trust companies, savings and loan
associations, financial institutions and other depositories, whether or
not
7
such deposits will draw interest, subject to withdrawal on such terms
and in such manner as the Trustees determine.
(i) Allocation; Accounts. To determine whether moneys,
profits or other assets of the Trust shall be charged or credited to, or
allocated between, income and capital, including whether to amortize any
premium or discount and to determine in what manner any expenses or
disbursements are to be borne as between income and capital (regardless
of how such items would normally or otherwise be charged to or allocated
between income and capital without such determination); to treat any
dividend or other distribution on any investment as, or apportion it
between, income and capital; in their discretion to provide reserves for
depreciation, amortization, obsolescence or other purposes in respect of
any Trust Property in such amounts and by such methods as they
determine; to determine what constitutes net earnings, profits or
surplus; to determine the method or form in which the accounts and
records of the Trust shall be maintained; and to allocate to the
Shareholders equity account less than all of the consideration paid for
Shares and to allocate the balance to paid-in capital or capital
surplus.
(j) Valuation of Property. To determine the value of all or
any part of the Trust Property and of any services, Securities, property
or other consideration to be furnished to or acquired by the Trust, and
to revalue all or any part of the Trust Property, all in accordance with
such information as is reasonable, in their sole judgment.
(k) Ownership and Voting Powers. To exercise all of the
rights, powers, options and privileges pertaining to the ownership of
any Mortgages, Securities, Real Estate and other Trust Property to the
same extent that an individual owner might, including, without
limitation, to vote or give any consent, request, or notice or waive any
notice, either in person or by proxy or power of attorney, which proxies
and powers of attorney may be for any general or special meetings or
action, and may include the exercise of discretionary powers; provided,
however, that after the Initial Five Year Period (as defined in Section
7.1) the Trustees shall not, without the prior affirmative vote of not
less than two-thirds of the Shares then outstanding and entitled to
vote, effect (i) the merger or consolidation of the Operating
Partnership in a transaction in which the Operating Partnership is not
the surviving entity, (ii) a voluntary sale or other transfer of all or
substantially all of the assets owned by the Operating Partnership,
(iii) the dissolution of the Operating Partnership, (iv) the institution
of any proceedings for bankruptcy on behalf of the Operating
Partnership, (v) the making of a general assignment for the benefit of
creditors or acquiescence to the filing of an involuntary bankruptcy
petition against the Operating Partnership or (vi) the appointment of a
custodian, receiver or trustee for all or any part of the assets of the
Operating Partnership.
8
(l) Officers, Etc.; Delegation of Powers. To elect, appoint
or employ such officers for the Trust and such committees of the Board
of Trustees with such powers and duties as the Trustees may determine or
the Trust's Bylaws provide; to engage, employ or contract with and pay
compensation to any Person (including, subject to Section 9.5, any
Trustee and any Person who is an Affiliate of any Trustee) as agent,
representative, Adviser, members of an advisory board, employee or
independent contractor (including advisers, consultants, transfer
agents, registrars, underwriters, accountants, attorneys, real estate
agents, property and other managers, appraisers, brokers, architects,
engineers, construction managers, general contractors or others) in one
or more capacities, to perform such services on such terms as the
Trustees may determine; to delegate to one or more Trustees, officers or
other Persons engaged or employed as aforesaid or to committees of
Trustees or to the Adviser, the performance of acts or other things
(including granting of consents), the making of decisions and the
execution of such deeds, contracts or other instruments, either in the
names of the Trust, the Trustees or as their attorneys or otherwise, as
the Trustees may determine; and to establish such committees as they
deem appropriate.
(m) Associations. Subject to Section 9.5, to cause the Trust
to enter into joint ventures, general or limited partnerships,
participation or agency arrangements or any other lawful combinations,
relationships or associations of any kind through which the Trustees may
exercise any and all powers accorded them by this Declaration of Trust.
(n) Reorganizations; Etc. Subject to Sections 10.2 and 10.3,
to cause to be organized or assist in organizing any Person under the
laws of any jurisdiction to acquire all or any part of the Trust
Property or carry on any business in which the Trust shall have an
interest; to merge or consolidate the Trust with any Person; to sell,
rent, lease, hire, convey, negotiate, assign, exchange or transfer all
or any part of the Trust Property to or with any Person in exchange for
Securities of such Person or otherwise; and to lend money to, subscribe
for and purchase the Securities of, and enter into any contracts with,
any Person in which the Trust holds, or is about to acquire, Securities
or any other interests.
(o) Insurance. To purchase and pay for out of Trust Property
insurance policies insuring the Trust and the Trust Property against any
and all risks, and insuring the Shareholders, Trustees, officers,
employees and agents of the Trust individually against all claims and
liabilities of every nature arising by reason of holding or having held
any such status, office or position or by reason of any action alleged
to have been taken or omitted (including those alleged to constitute
misconduct, gross negligence, reckless disregard of duty or bad faith)
by any such Person in such capacity, whether or not the Trust would have
the power to indemnify such person against such claim or liability.
9
(p) Executive Compensation; Pension and Other Plans. To
adopt and implement executive compensation, pension, profit sharing,
stock option, stock bonus, stock purchase, stock appreciation rights,
savings, thrift, retirement, incentive or benefit plans, trusts or
provisions, applicable to any or all Trustees, officers, employees or
agents of the Trust, or to other Persons who have benefited the Trust,
all on such terms and for such purposes as the Trustees may determine.
(q) Distributions. To declare and pay dividends or other
distributions to Shareholders, subject to Article VII with respect to
Excess Shares.
(r) Indemnification. In addition to the indemnification
provided for in Section 9.4, to indemnify any Person, including any
Adviser or independent contractor, with whom the Trust has dealings.
(s) Charitable Contributions. To make donations for the
public welfare or for community, charitable, religious, educational,
scientific, civic or similar purposes, regardless of any direct benefit
to the Trust.
(t) Discontinue Operations; Bankruptcy. To discontinue the
operations of the Trust (subject to Section 11.2); to petition or apply
for relief under any provision of federal or state bankruptcy,
insolvency or reorganization laws or similar laws for the relief of
debtors; to permit any Trust Property to be foreclosed upon without
raising any legal or equitable defenses that may be available to the
Trust or the Trustees or otherwise defending or responding to such
foreclosure; to confess judgment against the Trust; or to take such
other action with respect to indebtedness or other obligations of the
Trustees, in such capacity, the Trust Property or the Trust as the
Trustees in their discretion may determine.
(u) Termination of Status. To terminate the status of the
Trust as a real estate investment trust under the REIT Provisions of the
Code.
(v) Fiscal Year. Subject to the Code, to adopt, and from
time to time change, a fiscal year for the Trust.
(w) Seal. 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.
(x) Bylaws. To adopt, implement and from time to time amend
Bylaws of the Trust relating to the business and organization of the
Trust which are not inconsistent with the provisions of this Declaration
of Trust.
(y) Voting Trust. To participate in, and accept Securities
issued under or subject to, any voting trust.
10
(z) Proxies. To solicit proxies of the Shareholders at the
expense of the Trust.
(aa) Further Powers. To do all other acts and things and
execute and deliver all instruments incident to the foregoing powers,
and to exercise all powers which they deem necessary, useful or
desirable to carry on the business of the Trust or to carry out the
provisions of this Declaration of Trust, even if such powers are not
specifically provided hereby.
ARTICLE IV
ADVISER
SECTION 4.1 Appointment. The Trustees are responsible for
setting the general policies of the Trust and for the general
supervision of its business conducted by officers, agents, employees,
advisers or independent contractors of the Trust. The Trustees are not
required, however, to conduct personally the business of the Trust, and
they may (but need not) appoint, employ or contract with any Person
(including a Person Affiliated with any Trustee) as an Adviser and may
grant or delegate such authority to the Adviser as the Trustees may, in
their sole discretion, deem necessary or desirable. The Trustees may
determine the terms of retention and the compensation of the Adviser and
may exercise broad discretion in allowing the Adviser to administer and
regulate the operations of the Trust, to act as agent for the Trust, to
execute documents on behalf of the Trust and to make executive decisions
which conform to general policies and principles established by the
Trustees.
SECTION 4.2 Affiliation and Functions. The Trustees, by
resolution or in the Bylaws, may provide guidelines, provisions or
requirements concerning the affiliation and functions of the Adviser.
ARTICLE V
INVESTMENT POLICY
The fundamental investment policy of the Trust is to make
investments in such a manner as to comply with the REIT Provisions of
the Code and with the requirements of Title 8, with respect to the
composition of the Trust's investments and the derivation of its income.
Subject to Section 3.2(u), the Trustees will use their best efforts to
carry out this fundamental investment policy and to conduct the affairs
of the Trust in such a manner as to continue to qualify the Trust for
tax treatment provided in the REIT Provisions of the Code; provided,
however, no Trustee, officer, employee or agent of the Trust shall be
liable for any act or omission resulting in the loss of tax benefits
under the Code, except to the extent provided in Section 9.2. The
Trustees may change from time to
11
time by resolution or in the Bylaws of the Trust, such investment
policies as they determine to be in the best interests of the Trust,
including prohibitions or restrictions upon certain types of
investments.
ARTICLE VI
SHARES
SECTION 6.1 Shares. The beneficial interest in the Trust shall
be divided into Shares. The total number of Shares which the Trust has
authority to issue is two hundred million (200,000,000), and shall
consist of Shares, which may comprise one or more series or classes, and
such other types, series or classes of Securities of the Trust as the
Trustees may create and authorize from time to time and designate as
representing a beneficial interest in the Trust. Shares may be issued
for such consideration as the Trustees determine or, if issued as a
result of a Share dividend or Share split, without any consideration, in
which case all Shares so issued shall be full paid and nonassessable by
the Trust.
SECTION 6.2 Common Shares. Common Shares ("Common Shares") shall
have a par value of $.001 per share and, subject to the provisions of
Article VII with respect to Excess Shares (as defined in Article VII),
shall entitle the holders to one vote per Common Share on a
non-cumulative basis on all matters upon which Shareholders are entitled
to vote pursuant to Section 8.2, and shares of a particular class of
issued Common Shares shall have equal dividend, distribution,
liquidation and other rights, and shall have no preference, preemptive,
appraisal, conversion or exchange rights. Subject to the express terms
of any class of Common Shares outstanding at the time, and
notwithstanding any other provision of the Declaration of Trust, the
Board of Trustees may increase or decrease the number of, alter the
designation of or classify or reclassify any unissued Shares by setting
or changing, in any one or more respects, from time to time before
issuing the Shares, and, subject to the provisions of Article VII
regarding Excess Shares, the terms, preferences, conversion and other
rights, including, but not limited to, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or
terms or conditions of redemption of any class of Shares, and in such
event, the Trust shall file for record with the State Department of
Assessments and Taxation of Maryland articles supplementary in substance
and form as prescribed by Maryland law.
SECTION 6.3 Preferred Shares. The Trustees are hereby expressly
granted the authority to authorize from time to time the issuance of one
or more series of preferred Shares ("Preferred Shares") and, with
respect to any such series, to fix the numbers, designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications and other terms or
conditions of redemption of
12
such series. Subject to the express terms of any series of Preferred
Shares at the time, and notwithstanding any other provision of the
Declaration of Trust, the Board of Trustees may increase or decrease the
number of, alter the designation of or classify or reclassify any
unissued Preferred Shares by setting or changing, in any one or more
respects, from time to time before issuing the Preferred Shares, and,
subject to the provisions of Article VII regarding Excess Shares, the
terms, preferences, conversion and other rights, including, but not
limited to, voting powers, restrictions, limitations as to dividends or
other distributions, qualifications or terms or conditions of
redemption, of any series of Preferred Shares, and in such event, the
Trust shall file for record with the State Department of Assessments and
Taxation of Maryland articles supplementary in substance and form as
prescribed by Maryland law.
SECTION 6.4 Dividends or Distributions. The Trustees may from
time to time declare and pay to Shareholders such dividends or
distributions in cash, property or other assets of the Trust or in
Securities of the Trust or from any other source as the Trustees in
their discretion shall determine. The Trustees shall endeavor to declare
and pay such dividends and distributions as shall be necessary for the
Trust to qualify as a real estate investment trust under the REIT
Provisions of the Code; however, Shareholders shall have no right to any
dividend or distribution unless and until declared by the Trustees. The
exercise of the powers and rights of the Trustees pursuant to this
Section shall be subject to the provisions of any class or series of
Shares at the time outstanding. The receipt by any Person in whose name
any Shares are registered on the records of the Trust or by his duly
authorized agent shall be a 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.
SECTION 6.5 General Nature of Shares. All Shares shall be
personal property entitling the Shareholders only to those rights
provided in this Declaration or in the resolution creating any class or
series of Shares. The legal ownership of the Trust Property and the
right to conduct the business of the Trust are vested exclusively in the
Trustees; the Shareholders shall have no interest therein other than
beneficial interest in the Trust conferred by their Shares and shall
have no right to compel any partition, division, dividend or
distribution of the Trust or any of the Trust Property. The death of a
Shareholder shall not terminate the Trust or give his legal
representative any rights against other Shareholders, the Trustees or
the Trust Property, except the right, exercised in accordance with
applicable provisions of the Bylaws, to receive a new certificate for
Shares in exchange for the certificate held by the deceased Shareholder.
ARTICLE VII
13
RESTRICTION ON TRANSFER,
ACQUISITION AND REDEMPTION OF EQUITY SHARES;
EXCHANGE FOR EXCESS SHARES
SECTION 7.1 Definitions. For the purposes of this Article VII,
the following terms shall have the following meanings:
"Aggregate Share Ownership Limit" shall mean not more than 5.0%
in value of the aggregate of the outstanding Equity Shares. The value of
the outstanding Equity Shares shall be determined by the Board of
Trustees in good faith, which determination shall be conclusive for all
purposes hereof.
"Beneficial Ownership" shall mean ownership of Equity Shares by
a Person, whether the interest in Equity Shares is held directly or
indirectly (including by a nominee), and shall include interests that
would be treated as owned through the application of Section 544 of the
Code, as modified by Section 856(h)(1)(B) of the Code. The terms
"Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall
have the correlative meanings.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in New York City are authorized or required by law,
regulation or executive order to close.
"Charitable Beneficiary" shall mean one or more beneficiaries of
the Charitable Trust as determined pursuant to Section 7.18, provided
that each such organization must be described in Section 501(c)(3) of
the Code and contributions to each such organization must be eligible
for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the
Code.
"Charitable Trust" shall mean any trust provided for in Section
7.13.
"Common Share Ownership Limit" shall mean not more than 5.0% (in
value or in number of shares, whichever is more restrictive) of the
aggregate number of the outstanding Common Shares. The number and value
of outstanding Common Shares shall be determined by the Board of
Trustees in good faith, which determination shall be conclusive for all
purposes hereof.
"Constructive Ownership" shall mean ownership of Equity Shares
by a Person, whether the interest in Equity Shares is held directly or
14
indirectly (including by a nominee), and shall include interests that
would be treated as owned through the application of Section 318(a) of
the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned"
shall have the correlative meanings.
"Equity Shares" shall mean either Common Shares and Preferred
Shares.
"Excepted Holder" shall mean a shareholder of the Trust for whom
an Excepted Holder Limit is created by this Article VII or by the Board
of Trustees pursuant to Section 7.10.
"Excepted Holder Limit" shall mean, provided that the affected
Excepted Holder agrees to comply with the requirements established by
the Board of Trustees pursuant to Section 7.10, the percentage limit
established by the Board of Trustees for such Excepted Holder pursuant
to Section 7.10.
"Excess Shares" shall have the meaning ascribed to it in Section
7.2(b).
"Initial Date" shall mean the date of issuance of the Common
Shares pursuant to the initial underwritten public offering of Common
Shares.
The term "Market Price" on any date shall mean, with respect to
any class or series of outstanding Equity Shares, the Closing Price for
such Equity Shares on such date. The "Closing Price" on any date shall
mean the last sale price for such Equity Shares, regular way, or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, for such Equity Shares, in either
case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the
NYSE or, if such Equity Shares are not listed or admitted to trading on
the NYSE, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which such Equity Shares are listed or
admitted to trading or, if such Equity Shares are not listed or admitted
to trading on any national securities exchange, the last quoted price,
or, if not so quoted, the average of the high bid and low asked prices
in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System or, if such
system is no longer in use, the principal other automated quotation
system that may then be in use or, if such Equity Shares are not quoted
by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in
such Equity Shares selected by the Board of Trustees or, in the
15
event that no trading price is available for such Equity Shares, the
fair market value of Equity Shares, as determined in good faith by the
Board of Trustees.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Prohibited Owner" shall mean, with respect to any purported
Transfer, any Person who, but for the provisions of Section 7.2, would
Beneficially Own or Constructively Own Equity Shares in violation of the
provisions of Section 7.2(a), and if appropriate in the context, shall
also mean any Person who would have been the record owner of Equity
Shares that the Prohibited Owner would have so owned.
"REIT" shall mean a real estate investment trust within the
meaning of Section 856 of the Code.
"Restriction Termination Date" shall mean the first day after
the Initial Date on which the Board of Trustees determines that it is no
longer in the best interests of the Trust to attempt to, or continue to,
qualify as a REIT or that compliance with the restrictions and
limitations on Beneficial Ownership, Constructive Ownership and
Transfers of Equity Shares set forth herein is no longer required in
order for the Trust to qualify as a REIT.
"SDAT" shall mean the State Department of Assessments and
Taxation of Maryland.
"Transfer" shall mean any issuance, sale, transfer, gift,
assignment, devise or other disposition, as well as any other event that
causes any Person to acquire Beneficial Ownership or Constructive
Ownership, or any agreement to take any such actions or cause any such
events, of Equity Shares or the right to vote or receive dividends on
Equity Shares, including (a) the granting or exercise of any option (or
any disposition of any option), (b) any disposition of any securities or
rights convertible into or exchangeable for Equity Shares or any
interest in Equity Shares or any exercise of any such conversion or
exchange right and (c) Transfers of interests in other entities that
result in changes in Beneficial or Constructive Ownership of Equity
Shares; in each case, whether voluntary or involuntary, whether owned of
record, Constructively Owned or Beneficially Owned and whether by
operation of law or otherwise. The terms "Transferring" and
"Transferred" shall have the correlative meanings.
"Trustee" shall mean the Person unaffiliated with the Trust and
a Prohibited Owner, that is appointed by the Trust to serve as trustee
of the Charitable Trust.
SECTION 7.2 Ownership Limitation.
16
(a) Basic Restrictions.
(i) (1) No Person, other than an Excepted Holder,
shall Beneficially Own or Constructively Own Equity Shares in excess of
the Aggregate Share Ownership Limit, (2) no Person, other than an
Excepted Holder, shall Beneficially Own or Constructively Own Common
Shares in excess of the Common Share Ownership Limit and (3) no Excepted
Holder shall Beneficially Own or Constructively Own Equity Shares in
excess of the Excepted Holder Limit for such Excepted Holder.
(ii) No Person shall Beneficially or Constructively
Own Equity Shares to the extent that such Beneficial or Constructive
Ownership of Equity Shares would result in the Trust being "closely
held" within the meaning of Section 856(h) of the Code (without regard
to whether the ownership interest is held during the last half of a
taxable year), or otherwise failing to qualify as a REIT (including, but
not limited to, Beneficial or Constructive Ownership that would result
in the Trust owning (actually or Constructively) an interest in a tenant
that is described in Section 856(d)(2)(B) of the Code if the income
derived by the Trust from such tenant would cause the Trust to fail to
satisfy any of the gross income requirements of Section 856(c) of the
Code).
(iii) Notwithstanding any other provisions contained
herein, any Transfer of Equity Shares (whether or not such Transfer is
the result of a transaction entered into through the facilities of the
NYSE or any other national securities exchange or automated inter-dealer
quotation system) that, if effective, would result in Equity Shares
being beneficially owned by less than 100 Persons (determined under the
principles of Section 856(a)(5) of the Code) shall be void ab initio,
and the intended transferee shall acquire no rights in such Equity
Shares.
(b) Transfer in Trust. If any Transfer of Equity Shares
(whether or not such Transfer is the result of a transaction entered
into through the facilities of the NYSE or any other national securities
exchange or automated inter-dealer quotation system) occurs which, if
effective, would result in any Person Beneficially Owning or
Constructively Owning Equity Shares in violation of Section 7.2(a)(i) or
(ii),
(i) then that number of Equity Shares the Beneficial
or Constructive Ownership of which otherwise would cause such Person to
violate Section 7.2(a)(i) or (ii) (rounded to the nearest whole share)
(the "Excess Shares") shall be automatically transferred to a Charitable
Trust for the benefit of a Charitable Beneficiary, as described in
Section 7.13, effective as of the close of business on the Business Day
prior to the date of such Transfer, and such Person shall acquire no
rights in such Excess Shares; or
17
(ii) if the transfer to the Charitable Trust
described in clause (i) of this sentence would not be effective for any
reason to prevent the violation of Section 7.2(a)(i) or (ii), then the
Transfer of that number of such Excess Shares that otherwise would cause
any Person to violate Section 7.2(a)(i) or (ii) shall be void ab initio,
and the intended transferee shall acquire no rights in such Excess
Shares.
SECTION 7.3 Prevention of Transfer. If the Board of Trustees or
any duly authorized committee thereof shall at any time determine in
good faith that a Transfer or other event has taken place that results
in a violation of Section 7.2(a) or that a Person intends to acquire or
has attempted to acquire Beneficial or Constructive Ownership of any
Equity Shares in violation of Section 7.2(a) (whether or not such
violation is intended), the Board of Trustees or a committee thereof
shall take such action as it deems advisable to refuse to give effect to
or to prevent such Transfer or other event, including, without
limitation, causing the Trust to redeem Equity Shares, refusing to give
effect to such Transfer on the books of the Trust or instituting
proceedings to enjoin such Transfer or other event; provided, however,
that any Transfers or attempted Transfers or other events in violation
of Section 7.2(a) shall automatically result in the transfer to the
Charitable Trust described above, and, where applicable, such Transfer
(or other event) shall be void ab initio as provided above irrespective
of any action (or non-action) by the Board of Trustees or a committee
thereof.
SECTION 7.4 Notice to Trust. Any Person who acquires or attempts
or intends to acquire Beneficial Ownership or Constructive Ownership of
Equity Shares that will or may violate Section 7.2(a), or any Person who
would have owned Equity Shares that resulted in a transfer to the
Charitable Trust pursuant to the provisions of Section 7.2(b), shall
immediately give written notice to the Trust of such event, or in the
case of such a proposed or attempted transaction, give at least 15 days
prior written notice, and shall provide to the Trust such other
information as the Trust may request in order to determine the effect,
if any, of such Transfer on the Trust's status as a REIT.
SECTION 7.5 Information for Trust. From and after the Initial
Date and prior to the Restriction Termination Date:
(a) Every owner of more than five percent (or such lower
percentage as required by the Code or the Treasury Regulations
promulgated thereunder) of the outstanding Equity Shares, within 30 days
after the end of each taxable year, shall give written notice to the
Trust stating the name and address of such owner, the number of Equity
Shares Beneficially Owned and a description of the manner in which such
shares are held. Each such owner shall provide to the Trust such
additional information as the Trust may request in order to determine
the effect, if
18
any, of such Beneficial Ownership on the Trust's status as a REIT and to
ensure compliance with the Aggregate Share Ownership Limit.
(b) Each Person who is a Beneficial or Constructive Owner of
Equity Shares and each Person (including the shareholder of record) who
is holding Equity Shares for a Beneficial or Constructive Owner shall
provide to the Trust such information as the Trust may request, in good
faith, in order to determine the Trust's status as a REIT and to comply
with requirements of any taxing authority or governmental authority or
to determine such compliance.
SECTION 7.6 Other Action by Board. Nothing contained in this
Article VII shall limit the authority of the Board of Trustees to take
such other action as it deems necessary or advisable to protect the
Trust and the interests of the Shareholders by preservation of the
Trust's status as a REIT.
SECTION 7.7 Ambiguities. In the case of an ambiguity in the
application of any of the provisions of this Article VII, including any
definition contained in Section 7.1, the Board of Trustees shall have
the power to determine the application of the provisions of this Article
VII with respect to any situation based on the facts known to it.
SECTION 7.8 Increase in Ownership Limit. Subject to the
limitations provided in Section 7.9, the Board of Trustees may from time
to time increase the Common Share Ownership Limit and the Aggregate
Share Ownership Limit.
SECTION 7.9 Limitations on Changes in Ownership Limits. Prior to
the modification of the Common Share Ownership Limit and the Aggregate
Share Ownership Limit pursuant to Section 7.8, the Board of Trustees may
require such opinions of counsel, affidavits, undertakings or agreements
as it may deem necessary or advisable in order to determine or ensure
the Trust's status as a REIT.
SECTION 7.10 Exceptions by Board.
(a) Subject to Section 7.2(a)(ii), the Board of Trustees, in
its sole discretion, may exempt a Person from the Aggregate Share
Ownership Limit and/or the Common Share Ownership Limit, as the case may
be, and may establish or increase an Excepted Holder Limit for such
Person if:
(i) the Board of Trustees obtains such
representations and undertakings from such Person as are reasonably
necessary to ascertain that no individual (defined to mean any Person
who would be treated as an individual for purposes of Section 542(a)(2)
of the Code (determined by taking into account Section 856(h)(3)(A) of
the Code))
19
would Beneficially or Constructively Own Equity Shares in violation
Section 7.2(a)(ii);
(ii) such Person does not and represents that it will
not own, actually or Constructively, an interest in a tenant of the
Trust (or a tenant of any entity owned or controlled by the Trust) that
would cause the Trust to own, actually or Constructively, more than a
5.0% interest (as set forth in Section 856(d)(2)(B) of the Code) in such
tenant and the Board of Trustees obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain
this fact (for this purpose, a tenant from whom the Trust (or an entity
owned or controlled by the Trust) derives (and is expected to continue
to derive) a sufficiently small amount of revenue such that, in the
opinion of the Board of Trustees, rent from such tenant would not
adversely affect the Trust's ability to qualify as a REIT, shall not be
treated as a tenant of the Trust); and
(iii) such Person agrees that any violation or
attempted violation of such representations or undertakings (or other
action which is contrary to the restrictions contained in Sections 7.2
through 7.7) will result in such Equity Shares being automatically
transferred to a Charitable Trust in accordance with Sections 7.2(b) and
7.3.
(b) Prior to granting any exception pursuant to Section
7.10(a), the Board of Trustees may require a ruling from the Internal
Revenue Service, or an opinion of counsel, in either case in form and
substance satisfactory to the Board of Trustees in its sole discretion,
as it may deem necessary or advisable in order to determine or ensure
the Trust's status as a REIT. Notwithstanding the receipt of any ruling
or opinion, the Board of Trustees may impose such conditions or
restrictions as it deems appropriate in connection with granting such
exception.
(c) Subject to Section 7.2(a)(ii), an underwriter which
participates in a public offering or a private placement of Equity
Shares (or securities convertible into or exchangeable for Equity
Shares) may Beneficially Own or Constructively Own Equity Shares (or
securities convertible into or exchangeable for Equity Shares) in excess
of the Aggregate Share Ownership Limit, the Common Share Ownership Limit
or both such limits, but only to the extent necessary to facilitate such
public offering or private placement.
(d) The Board of Trustees may only reduce the Excepted
Holder Limit for an Excepted Holder: (1) with the written consent of
such Excepted Holder at any time, or (2) pursuant to the terms and
conditions of the agreements and undertakings entered into with such
Excepted Holder in connection with the establishment of the Excepted
Holder Limit for that Excepted Holder. No Excepted Holder Limit shall be
reduced to a percentage that is less than the Common Share Ownership
Limit.
20
SECTION 7.11 Legend. Each certificate for Equity Shares shall
bear substantially the following legend:
The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Trust's maintenance of
its status as a real estate investment trust under the Internal Revenue
Code of 1986, as amended. Except as otherwise provided pursuant to the
Declaration of Trust, no Person may Beneficially Own Shares in excess of
that number of Shares which equals the lesser of 5.0% (or such greater
percentage as may be determined by the Board of Trustees) of (a) the
number of outstanding Equity Shares of the Trust and (b) the value of
outstanding Equity Shares of the Trust. Any Person who attempts or
proposes to beneficially own Shares in excess of the above limitations
must notify the Trust in writing at least 15 days prior to such proposed
or attempted Transfer. All capitalized terms in this legend have the
meanings defined in the Declaration of Trust of the Trust, a copy of
which will be sent without charge to each Shareholder who so requests.
If the restrictions on transfer are violated, the securities represented
hereby will be designated and treated as Excess Shares which will be
held in the Charitable Trust by the Trust.
Instead of the foregoing legend, the certificate may state that
the Trust will furnish a full statement about certain restrictions on
transferability to a shareholder on request and without charge.
SECTION 7.12 Severability. If any provision of this Article VII
or any application of any such provision is determined to be void,
invalid or unenforceable by any court of competent jurisdiction, the
validity and enforceability 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.
SECTION 7.13 Ownership in Trust. Upon any purported Transfer or
other event described in Section 7.2(b) that would result in a transfer
of Equity Shares to a Charitable Trust, such Equity Shares shall be
deemed to have been transferred to the Trustee as trustee of a
Charitable Trust for the exclusive benefit of one or more Charitable
Beneficiaries. Such transfer to the Trustee shall be deemed to be
effective as of the close of business on the Business Day prior to the
purported Transfer or other event that results in the transfer to the
Charitable Trust pursuant to Section 7.2(b). The Trustee shall be
appointed by the Trust and shall be a Person unaffiliated with the Trust
and any Prohibited Owner. Each Charitable Beneficiary shall be
designated by the Trust as provided in Section 7.18.
SECTION 7.14 Status of Shares Held by the Trustee. Equity Shares
held by the Trustee shall be issued and outstanding Equity Shares of the
Trust. The Prohibited Owner shall have no rights in the shares held
21
by the Trustee. The Prohibited Owner shall not benefit economically from
ownership of any shares held in trust by the Trustee, shall have no
rights to dividends or other distributions and shall not possess any
rights to vote or other rights attributable to the shares held in the
Charitable Trust.
SECTION 7.15 Dividend and Voting Rights. The Trustee shall have
all voting rights and rights to dividends or other distributions with
respect to Equity Shares held in the Charitable Trust, which rights
shall be exercised for the exclusive benefit of the Charitable
Beneficiary. Any dividend or other distribution paid to a Prohibited
Owner prior to the discovery by the Trust that Equity Shares have been
transferred to the Trustee shall be paid with respect to such Equity
Shares by the Prohibited Owner to the Trustee upon demand and any
dividend or other distribution authorized but unpaid shall be paid when
due to the Trustee. Any dividends or distributions so paid over to the
Trustee shall be held in trust for the Charitable Beneficiary. The
Prohibited Owner shall have no voting rights with respect to shares held
in the Charitable Trust and, subject to Maryland law, effective as of
the date that Equity Shares have been transferred to the Trustee, the
Trustee shall have the authority (at the Trustee's sole discretion) (i)
to rescind as void any vote cast by a Prohibited Owner prior to the
discovery by the Trust that Equity Shares have been transferred to the
Trustee and (ii) to recast such vote in accordance with the desires of
the Trustee acting for the benefit of the Charitable Beneficiary;
provided, however, that if the Trust has already taken irreversible
trust action, then the Trustee shall not have the authority to rescind
and recast such vote. Notwithstanding the provisions of this Article
VII, until the Trust has received notification that Equity Shares have
been transferred into a Charitable Trust, the Trust shall be entitled to
rely on its share transfer and other shareholder records for purposes of
preparing lists of shareholders entitled to vote at meetings,
determining the validity and authority of proxies and otherwise
conducting votes of shareholders.
SECTION 7.16 Sale of Shares by Trustee. Within 20 days of
receiving notice from the Trust that Equity Shares have been transferred
to the Charitable Trust, the Trustee of the Charitable Trust shall sell
the shares held in the Charitable Trust to a person, designated by the
Trustee, whose ownership of the shares will not violate the ownership
limitations set forth in Section 7.2(a). Upon such sale, the interest of
the Charitable Beneficiary in the shares sold shall terminate and the
Trustee shall distribute the net proceeds of the sale to the Prohibited
Owner and to the Charitable Beneficiary as provided in this Section
7.16. The Prohibited Owner shall receive the lesser of (1) the price
paid by the Prohibited Owner for the shares or, if the Prohibited Owner
did not give value for the shares in connection with the event causing
the shares to be held in the Charitable Trust (e.g., in the case of a
gift, devise or other such transaction), the Market Price of the shares
on the day of the event causing
22
the shares to be held in the Charitable Trust and (2) the price per
share received by the Trustee from the sale or other disposition of the
shares held in the Charitable Trust. Any net sales proceeds in excess of
the amount payable to the Prohibited Owner shall be immediately paid to
the Charitable Beneficiary. If, prior to the discovery by the Trust that
Equity Shares have been transferred to the Trustee, such shares are sold
by a Prohibited Owner, then (i) such shares shall be deemed to have been
sold on behalf of the Charitable Trust and (ii) to the extent that the
Prohibited Owner received an amount for such shares that exceeds the
amount that such Prohibited Owner was entitled to receive pursuant to
this Section 7.16, such excess shall be paid to the Trustee upon demand.
SECTION 7.17 Purchase Right in Shares Transferred to the
Trustee. Equity Shares transferred to the Trustee shall be deemed to
have been offered for sale to the Trust, or its designee, at a price per
share equal to the lesser of (i) the price per share in the transaction
that resulted in such transfer to the Charitable Trust (or, in the case
of a devise or gift, the Market Price at the time of such devise or
gift) and (ii) the Market Price on the date the Trust, or its designee,
accepts such offer. The Trust shall have the right to accept such offer
until the Trustee has sold the shares held in the Charitable Trust
pursuant to Section 7.16. Upon such a sale to the Trust, the interest of
the Charitable Beneficiary in the shares sold shall terminate and the
Trustee shall distribute the net proceeds of the sale to the Prohibited
Owner.
SECTION 7.18 Designation of Charitable Beneficiaries. By written
notice to the Trustee, the Trust shall designate one or more nonprofit
organizations to be the Charitable Beneficiary of the interest in the
Charitable Trust such that (i) Equity Shares held in the Charitable
Trust would not violate the restrictions set forth in Section 7.2(a) in
the hands of such Charitable Beneficiary and (ii) each such organization
must be described in Section 501(c)(3) of the Code and contributions to
each such organization must be eligible for deduction under each of
Sections 170(b)(1)(A), 2055 and 2522 of the Code.
SECTION 7.19 Priority of New York Stock Exchange, Inc.
Transactions. Notwithstanding anything in this Article VII to the
contrary, nothing herein shall preclude the settlement of a transaction
entered into through the facilities of the New York Stock Exchange, Inc.
The fact that the settlement of any transaction occurs shall not negate
the effect of any other provision of this Article VII and any transferee
in such a transaction shall be subject to all of the provisions and
limitations set forth in this Article VII.
SECTION 7.20 Enforcement. The Trust is authorized specifically
to seek equitable relief, including injunctive relief, to enforce the
provisions of this Article VII.
23
SECTION 7.21 Non-Waiver. No delay or failure on the part of the
Trust or the Board of Trustees in exercising any right hereunder shall
operate as a waiver of any right of the Trust or the Board of Trustees,
as the case may be, except to the extent specifically waived in writing.
ARTICLE VIII
SHAREHOLDERS
SECTION 8.1 Meetings of Shareholders. There shall be an annual
meeting of the Shareholders, to be held at such time and place as shall
be determined by or in the manner prescribed in the Bylaws at which the
Trustees shall be elected and any other proper business may be
conducted. Except as otherwise provided in this Declaration of Trust,
special meetings of Shareholders may be called in the manner provided in
the Bylaws. If there are no Trustees, the officers of the Trust shall
promptly call a special meeting of the Shareholders entitled to vote for
the election of successor Trustees. Any meeting may be adjourned and
reconvened as the Trustees determine or as provided in the Bylaws.
SECTION 8.2 Voting Rights of Shareholders.
(a) Subject to the provisions of any class or series of
Shares then outstanding, the Shareholders shall be entitled to vote only
on the following matters: (a) election or removal of Trustees as
provided in Sections 8.1 and 2.3; (b) amendment of any provision of this
Declaration of Trust as provided in Section 10.1; (c) termination of the
Trust as provided in Section 11.2; (d) reorganization of the Trust as
provided in Section 10.2; (e) merger, consolidation or Share exchange of
the Trust, or the sale or disposition of substantially all of the Trust
Property (except for a merger of any entity into the Trust in which the
Trust owns 90% or more of the entire equity interests in such entity) as
provided in Section 10.3; (f) any matter regarding the Operating
Partnership requiring the affirmative vote of Shares pursuant to Section
3.2(k); and (g) any matter for which a vote of Shareholders is required
by a national securities exchange on which the Shares are traded. Except
with respect to the foregoing matters, no action taken by the
Shareholders at any meeting shall in any way bind the Trustees.
(b) The submission of any action to the shareholders for
their consideration (other than the removal of one or more Trustees)
shall first be approved by the Board of Trustees.
ARTICLE IX
LIABILITY OF SHAREHOLDERS, TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS
24
AND TRANSACTIONS BETWEEN THEM AND THE TRUST
SECTION 9.1 Limitation of Shareholder Liability. No Shareholder
shall be liable for any debt, claim, demand, judgment or obligation of
any kind of, against or with respect to the Trust by reason of his being
a Shareholder, nor shall any Shareholder be subject to any personal
liability whatsoever, in tort, contract or otherwise, to any Person in
connection with the Trust Property or the affairs of the Trust.
SECTION 9.2 Limitation of Trustee and Officer Liability. To the
maximum extent that Maryland law in effect from time to time permits
limitation of the liability of trustees and officers of a real estate
investment trust, no Trustee or officer of the Trust shall be liable to
the Trust or to any Shareholder for money damages. Neither the amendment
nor repeal of this Section, nor the adoption or amendment of any other
provision of this Declaration of Trust inconsistent with this Section,
shall apply to or affect in any respect the applicability of the
preceding sentence with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption. In the absence of
any Maryland statute limiting the liability of trustees and officers of
a Maryland real estate investment trust for money damages in a suit by
or on behalf of the Trust or by any Shareholder, no Trustee or officer
of the Trust shall be liable to the Trust or to any Shareholder for
money damages except to the extent that (i) the Trustee or officer
actually received an improper benefit or profit in money, property or
services, in which case the liability shall not exceed the amount of the
benefit or profit in money, property or services actually received; or
(ii) a judgment or other final adjudication adverse to the Trustee or
officer is entered in a proceeding based on a finding in the proceeding
that, the Trustee's or officer's action or failure to act was the result
of active and deliberate dishonesty and was material to the cause of
action adjudicated in the proceeding.
SECTION 9.3 Express Exculpatory Clauses in Instruments. Neither
the Shareholders nor the Trustees, officers, employees or agents of the
Trust shall be liable under any written instrument creating an
obligation of the Trust, and all Persons shall look solely to the Trust
Property for the payment of any claim under or for the performance of
that instrument. The omission of the foregoing exculpatory language from
any instrument shall not affect the validity or enforceability of such
instrument and shall not render any Shareholder, Trustee, officer,
employee or agent liable thereunder to any third party, nor shall the
Trustees or any officer, employee or agent of the Trust be liable to
anyone for such omission.
SECTION 9.4 Indemnification and Advancement for Expenses. The
Trust shall have the power, to the maximum extent permitted by Maryland
law in effect from time to time, to obligate itself to indemnify, and to
pay or reimburse reasonable expenses in advance of final
25
disposition of a proceeding to (a) any Person who is a present or former
Shareholder, Trustee, officer, employee or agent of the Trust or (b) any
Person who, while a Shareholder, Trustee or officer of the Trust and at
the express request of the Trust, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a director, officer, shareholder, partner or
trustee of such corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, from and against all claims and
liabilities to which such Person may become subject by reason of his
being or having been a Shareholder, Trustee or officer or by reason of
having served in any of the capacities described in (b) above at the
request of the Trust while a Shareholder, Trustee or officer. The Trust
shall have the power, with the approval of its Board of Trustees, to
provide such indemnification and advancement of expenses to a Person who
served a predecessor of the Trust in any of the capacities described in
(a) or (b) above and to any employee or agent of the Trust or a
predecessor of the Trust.
SECTION 9.5 Transactions Between the Trust and its Trustees,
Officers, Employees and Agents.
(a) Subject to any express restrictions in this Declaration
of Trust or adopted by the Trustees in the Bylaws or by resolution, the
Trust may enter into any contract or transaction of any kind (including
without limitation for the purchase or sale of property or for any type
of services, including those in connection with underwriting or the
offer or sale of Securities of the Trust) with any Person, including any
Trustee, officer, employee or agent of the Trust or any Person
Affiliated with a Trustee, officer, employee or agent of the Trust,
whether or not any of them has a financial interest in such transaction.
(b) Without limiting any other procedures available by law
or otherwise to the Trust, the Board of Trustees may authorize any
agreement of the character described in Section 3.2 or other transaction
with any person, corporation, association, company, trust, partnership
(limited or general) or other organization, although one or more of the
Trustees or officers of the Trust may be a party to any such agreement
or an officer, director, stockholder or member of such other party, and
no such agreement or transaction shall be invalidated or rendered void
or voidable solely by reason of the existence of any such relationship
if the existence is disclosed or known to the Board of Trustees, and the
contract or transaction is approved by the Board of Trustees (including
the affirmative vote of a majority of the disinterested Trustees even if
they constitute less than a quorum of the Board). Any Trustee who is
also a director, officer, stockholder or member of such other entity may
be counted in determining the existence of a quorum at any meeting of
the Board of Trustees considering such matter.
26
(c) Notwithstanding anything in Section 9.5(b) to the
contrary, subsequent to the Closing Date of the Initial Public Offering
(as such term is defined in Article VII), the affirmative vote of a
majority of the votes cast by the independent Trustees (even if they
constitute less than a quorum of the Board) shall be required: (i) to
approve the purchase by the Trust or its subsidiaries (including the
Operating Partnership and its subsidiaries) of any of the Excluded
Assets; (ii) to approve the sale or refinancing of any properties of the
Trust or its subsidiaries (including the Operating Partnership and its
subsidiaries) contributed by the Rouse Group on or prior to the Closing
Date of the Initial Public Offering; and (iii) to approve or adopt, or
to waive any right of the Trust (including the waiver of a right to
enforce any existing right) under, or to amend in a manner so as to
reduce, limit or otherwise eliminate any right of the Trust or any of
its subsidiaries under, any agreement or transaction between the Trust
or any of its subsidiaries and any one or more of the Rouse Group or the
Rouse Senior Executives or their Affiliates, including, but not limited
to, employment agreements and agreements pursuant to which the Rouse
Group or the Rouse Senior Executives contributed their respective
interests in properties to the Operating Partnership.
ARTICLE X
AMENDMENT; REORGANIZATION; MERGER, ETC.
SECTION 10.1 Amendment.
(a) This Declaration of Trust may be amended by the
affirmative vote of the holders of not less than a majority of the
Shares then outstanding and entitled to vote thereon, except that
Section 2.3, Section 3.2(k), Article VII, Section 8.2, Section 9.3,
Article X and Section 11.2 may be amended only by the affirmative vote
of not less than two-thirds of the Shares then outstanding and entitled
to vote.
(b) The Trustees, by a two-thirds vote, may amend provisions
of this Declaration of Trust from time to time to enable the Trust to
qualify as a real estate investment trust under the REIT Provisions of
the Code or under Title 8.
(c) An amendment to this Declaration of Trust shall become
effective as provided in Section 12.5.
(d) This Declaration of Trust may not be amended except as
provided in this Section 10.1.
SECTION 10.2 Reorganization. Subject to the provisions of any
class or series of Shares at the time outstanding, the Trustees shall
have the power to (a) cause the organization of a corporation,
association, trust or other organization to take over the Trust Property
and carry on the
27
affairs of the Trust; (b) merge the Trust into, or sell, convey and
transfer the Trust Property to, any such corporation, association, trust
or organization in exchange for Securities thereof or beneficial
interests therein, and the assumption by the transferee of the
liabilities of the Trust; and (c) thereupon terminate the Trust and
deliver such Securities or beneficial interests ratably among the
Shareholders according to the respective rights of the class or series
of Shares held by them; provided that any such action shall have been
approved, at a meeting of the Shareholders called for the purpose, by
the affirmative vote of the holders of not less than two-thirds of the
Shares then outstanding and entitled to vote thereon.
SECTION 10.3 Merger, Consolidation or Sale of Trust Property.
Subject to the provisions of any class or series of Shares at the time
outstanding, the Trustees shall have the power to (a) merge the Trust
into another entity, (b) consolidate the Trust with one or more other
entities into a new entity or (c) sell or otherwise dispose of all or
substantially all of the Trust Property; provided, that such action
shall have been approved, at a meeting of the Shareholders called for
the purpose, by the affirmative vote of the holders of not less than (i)
two-thirds, if the Trust is not the surviving entity in any such merger
or consolidation or in the event of a proposed sale or disposition of
all or substantially all of the Trust Property, or (ii) a majority, in
all other cases, of the Shares then outstanding and entitled to vote
thereon.
ARTICLE XI
DURATION AND TERMINATION OF TRUST
SECTION 11.1 Duration of Trust. The Trust shall continue
perpetually unless terminated pursuant to Section 11.2 or pursuant to
any applicable provision of Title 8.
SECTION 11.2 Termination of Trust.
(a) Subject to the provisions of any class or series of
Shares at the time outstanding, 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 two-thirds of the Shares then
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 of Trust shall continue, including the powers to
fulfill or discharge the Trust's contracts, collect its assets, sell,
convey, assign,
28
exchange, transfer or otherwise dispose of all or any part of the
remaining Trust Property 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.
(iii) After paying or adequately providing for
the payment of all liabilities, and upon receipt of such releases,
indemnities and agreements as they deem necessary for their protection,
the Trustees may distribute the remaining Trust Property, in cash or in
kind or partly each, among the Shareholders according to their
respective rights, so that after payment in full or the setting apart
for payment of such preferential amounts, if any, to which the holders
of any Shares (other than Common Shares) at the time outstanding shall
be entitled, the remaining Trust Property available for payment and
distribution to Shareholders shall, subject to any participating or
similar rights of Shares (other than Common Shares) at the time
outstanding, be distributed ratably among the holders of Common Shares
at the time outstanding.
(b) After termination of the Trust, the liquidation of its
business, and the distribution to the Shareholders as herein provided, a
majority of the Trustees shall execute and file with the Trust's records
a document certifying that the Trust has been duly terminated, and
thereupon the Trustees shall be discharged from all liabilities and
duties hereunder, and the rights and interests of all Shareholders shall
cease.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Governing Law. This Declaration of Trust is
executed by the undersigned Trustees and delivered in the State of
Maryland with reference to the laws thereof, and the rights of all
parties and the validity, construction and effect of every provision
hereof shall be subject to and construed according to the laws of the
State of Maryland without regard to conflicts of laws provisions
thereof.
SECTION 12.2 Reliance by Third Parties. Any certificate shall be
final and conclusive as to any Persons dealing with the Trust if
executed by an individual who, according to the records of the Trust or
of any recording office in which this Declaration of Trust may be
recorded, appears to be the Secretary or an Assistant Secretary of the
Trust or a Trustee, and if certifying to: (a) the number or identity of
Trustees, officers of the Trust or Shareholders; (b) the due
authorization of the execution of any document; (c) the action or vote
taken, and the existence of a quorum, at a meeting of Trustees or
Shareholders; (d) a copy of this Declaration of Trust or of the Bylaws
as a true and complete copy as then
29
in force; (e) an amendment to this Declaration of Trust; (f) the
termination of the Trust; or (g) the existence of any fact which relates
to the affairs of the Trust. No purchaser, lender, transfer agent or
other Person shall be bound to make any inquiry concerning the validity
of any transaction purporting to be made on behalf of the Trust by the
Trustees or by any officer, employee or agent of the Trust.
SECTION 12.3 Provisions in Conflict with Law or Regulations.
(a) The provisions of this Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of
counsel, that any one or more of such provisions (the "Conflicting
Provisions") are in conflict with the REIT Provisions of the Code, Title
8 or other applicable federal or state laws, the Conflicting Provisions
shall be deemed never to have constituted a part of this Declaration of
Trust, even without any amendment of this Declaration of Trust pursuant
to Section 10.1; provided, however, that such determination by the
Trustees shall not affect or impair any of the remaining provisions of
this Declaration of Trust or render invalid or improper any action taken
or omitted prior to such determination. No Trustee shall be liable for
making or failing to make such a determination.
(b) If any provision of this Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such holding shall
not in any manner affect or render invalid or unenforceable such
provision in any other jurisdiction or any other provision of this
Declaration of Trust in any jurisdiction.
SECTION 12.4 Construction. In this Declaration of Trust, unless
the context otherwise requires, words used in the singular or in the
plural include both the plural and singular and words denoting any
gender include all genders. The title and headings of different parts
are inserted for convenience and shall not affect the meaning,
construction or effect of this Declaration of Trust. In defining or
interpreting the powers and duties of the Trust and its Trustees and
officers, reference may be made, to the extent appropriate and not
inconsistent with the Code or Title 8, to Titles 1 through 3 of the
Corporations and Associations Article of the Annotated Code of Maryland.
In furtherance and not in limitation of the foregoing, in accordance
with the provisions of Title 3, Subtitles 6 and 7, of the Corporations
and Associations Article of the Annotated Code of Maryland, the Trust
shall be included within the definition of "corporation" for purposes of
such provisions except to the extent provided in the By-laws.
SECTION 12.5 Approvals. This Amended and Restated Declaration of
Trust has been duly advised by the Board of Trustees and approved by the
shareholders of the Trust as required by law. The
30
principal office, resident agent, and names and addresses of Trustees
currently in office, are as set forth in the Amended and Restated
Declaration of Trust.
SECTION 12.6 Recordation. This Declaration of Trust and any
amendment hereto shall be filed for record with the State Department of
Assessments and Taxation of Maryland and may also be filed or recorded
in such other places as the Trustees deem appropriate, but failure to
file for record this Declaration of Trust or any amendment hereto in any
office other than in the State of Maryland shall not affect or impair
the validity or effectiveness of this Declaration of Trust or any
amendment hereto. A restated Declaration of Trust shall, upon filing, be
conclusive evidence of all amendments contained therein and may
thereafter be referred to in lieu of the original Declaration of Trust
and the various amendments thereto."
THIRD: The Restated Declaration of Trust of the Company as set
forth above has been duly advised by the board of trustees of the Company as
required by law.
FOURTH: The Declaration of Trust is not amended by these
Articles of Restatement.
FIFTH: The current address of the principal office of the Trust
is 11 East Chase Street, Baltimore, Maryland 21202.
SIXTH: The name and address of the current resident agent of
the Trust is CSC Lawyers Incorporating Service Company, 11 East Chase Street,
Baltimore, Maryland 21202.
SEVENTH: The number of trustees and the names of those currently
in office are as follows:
The current Class I Trustees are:
M. Leanne Lachman c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
J. Anthony Hayden c/o 65 Valley Stream Parkway, Suite
100 Malvern, PA 19355
The current Class II Trustees are:
Frederick F. Buchholz c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
Thomas C. DeLoach, Jr. c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
Daniel P. Garton c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
Stephen B. Siegel c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
31
The current Class III Trustees are:
William P. Hankowsky c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
David L. Lingerfelt c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
John A. Miller c/o 65 Valley Stream Parkway, Suite 100
Malvern, PA 19355
EIGHTH: The undersigned President acknowledges these Articles of
Restatement to be the act of the Trust and as to all matters or facts required
to be verified under oath, the undersigned President acknowledges that to the
best of the President's knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under
the penalties for perjury.
IN WITNESS WHEREOF, the Trust has caused these Articles of Restatement
to be signed in its name and on its behalf by its President and attested to by
its Secretary on this 21st day of June, 2004.
ATTEST: LIBERTY PROPERTY TRUST
/s/ James J. Bowes By:/s/ William P. Hankowsky (SEAL)
- -------------------------------- --------------------------------
James J. Bowes, Secretary William P. Hankowsky, President
32