EXHIBIT 3.1
HOSPITALITY PROPERTIES TRUST
Amended and Restated
Declaration of Trust
May 12, 1995
As Amended and Restated on August 21, 1995
INDEX
Page
ARTICLE I
THE TRUST; DEFINITIONS
1.1 Name......................................................................... 2
1.2 Places of Business........................................................... 2
1.3 Nature of Trust.............................................................. 2
1.4 Definitions.................................................................. 3
ARTICLE II
TRUSTEES
2.1 Number, Term of Office and Qualifications
of Trustees................................................................ 6
2.2 Compensation and Other Remuneration.......................................... 7
2.3 Resignation, Removal and Death of Trustees................................... 8
2.4 Vacancies.................................................................... 8
2.5 Successor and Additional Trustees............................................ 8
2.6 Actions by Trustees.......................................................... 9
2.7 Committees................................................................... 9
ARTICLE III
TRUSTEES' POWERS
3.1 Power and Authority of Trustees.............................................. 10
3.2 Specific Powers and Authority................................................ 10
3.3 Bylaws....................................................................... 16
ARTICLE IV
INVESTMENT POLICY AND POLICIES
WITH RESPECT TO CERTAIN
DISTRIBUTIONS TO SHAREHOLDERS
4.1 Statement of Policy.......................................................... 16
4.2 Prohibited Investments and Activities........................................ 17
4.3 Change in Investment Policies................................................ 17
ARTICLE V
THE SHARES AND SHAREHOLDERS
5.1 Description of Shares........................................................ 17
5.2 Certificates................................................................. 19
5.3 Fractional Shares............................................................ 20
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5.4 Legal Ownership of Trust Estate.............................................. 20
5.5 Shares Deemed Personal Property.............................................. 20
5.6 Share Record; Issuance and Transferability
of Shares.................................................................. 20
5.7 Dividends or Distributions to Shareholders................................... 21
5.8 Transfer Agent, Dividend Disbursing
Agent and Registrar........................................................ 22
5.9 Shareholders' Meetings....................................................... 22
5.10 Proxies...................................................................... 23
5.11 Reports to Shareholders...................................................... 23
5.12 Fixing Record Date........................................................... 24
5.13 Notice to Shareholders....................................................... 24
5.14 Shareholders' Disclosure; Restrictions on
Share Transfer; Limitation on Holdings..................................... 24
5.15 Special Voting Provisions relating to Certain
Business Combinations and Control Shares................................... 28
ARTICLE VI
LIABILITY OF TRUSTEES, SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS,
AND OTHER MATTERS
6.1 Limitation of Liability of Shareholders,
Trustees, Officers, Employees and Agents
for Obligations of the Trust............................................... 29
6.2 Express Exculpatory Clauses and Instruments.................................. 29
6.3 Limitation of Liability of Trustees, Officers,
Employees and Agents to the Trust and to
Shareholders for Acts and Omissions........................................ 30
6.4 Indemnification and Reimbursement of
Trustees, Officers, Employees, Agents and
Certain Other Persons...................................................... 30
6.5 Indemnification and Reimbursement of
Shareholders............................................................... 31
6.6 Right of Trustees, Officers, Employees and
Agents to Own Shares or Other Property
and to Engage in Other Business............................................ 31
6.7 Transactions Between Trustees, Officers,
Employees or Agents and the Trust.......................................... 32
6.8 Persons Dealing with Trustees, Officers,
Employees or Agents........................................................ 33
6.9 Reliance..................................................................... 33
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ARTICLE VII
DURATION, AMENDMENT AND TERMINATION
OF TRUST
7.1 Duration of Trust............................................................ 34
7.2 Termination of Trust......................................................... 34
7.3 Amendment Procedure.......................................................... 35
7.4 Amendments Effective......................................................... 35
7.5 Transfer to Successor........................................................ 35
ARTICLE VIII
MISCELLANEOUS
8.1 Applicable Law............................................................... 36
8.2 Index and Headings for Reference Only........................................ 36
8.3 Successors in Interest....................................................... 36
8.4 Inspection of Records........................................................ 36
8.5 Counterparts................................................................. 37
8.6 Provisions of the Trust in Conflict with
Law or Regulations; Severability........................................... 37
8.7 Certifications............................................................... 37
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
HOSPITALITY PROPERTIES TRUST
May 12, 1995
As Amended and Restated on August 21, 1995
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The Declaration of Hospitality Properties Trust, as filed with the
Maryland Department of Assessments and Taxation on May 12, 1995 is hereby
amended and restated as follows:
DECLARATION OF TRUST made as of the date set forth above by the
undersigned Trustees.
WITNESSETH:
WHEREAS, the Trustees desire to create a trust for the principal
purpose of investing in real property and interests therein; and
WHEREAS, the Trustees desire that such trust qualify as a "qualified
REIT subsidiary" as long as it shall remain wholly owned by Health and
Retirement Properties Trust ("HRP") and, thereafter, as a "real estate
investment trust" under the REIT Provisions of the Internal Revenue Code, and as
a "real estate investment trust" under Title 8 of the Corporations and
Associations Article of the Annotated Code of Maryland; and
WHEREAS, in furtherance of such purpose the Trustees intend to acquire
certain real property and interests therein and to hold, manage and dispose of
all such property as Trustees in the manner hereinafter stated; and
WHEREAS, it is proposed that the beneficial interest in the Trust be
divided into transferable Shares of Beneficial Interest, evidenced by
certificates therefor, as hereinafter provided;
NOW, THEREFORE, it is hereby agreed and declared that the Trustees will
hold any and all property of every type and description which they are acquiring
or may hereafter acquire as Trustees, together with the proceeds thereof, in
trust, to manage and dispose of the same for the benefit of the holders from
time
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to time of the Shares of Beneficial Interest being issued and to be issued
hereunder in the manner and subject to the stipulations contained herein.
ARTICLE I
THE TRUST; DEFINITIONS
1.1 Name. The name of the Trust created by this Declaration of Trust
shall be "Hospitality Properties Trust" and so far as may be practicable the
Trustees shall conduct the Trust's activities, execute all documents and sue or
be sued 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 nor to the
officers, agents, employees or Shareholders of the Trust or of such Trustees.
Under circumstances under which the Trustees determine that the use of such name
is not practicable or under circumstances in which the Trustees are
contractually bound to change that name, they may use such other designation or
they may adopt another name under which the Trust may hold property or conduct
its activities.
1.2 Places of Business. The Trust shall maintain an office in Maryland
at The Prentice-Hall Corporation System, Maryland, 11 East Chase Street,
Baltimore City, Maryland, 21202 or such other place in Maryland as the Trustees
may determine from time to time. The Resident Agent of the Trust at such office
shall be The Prentice-Hall Corporation System, Maryland. The Trust may change
such Resident Agent from time to time as the Trustees shall determine. The Trust
may have such other offices or places of business within or without the State of
Maryland as the Trustees may from time to time determine.
1.3 Nature of Trust. The Trust shall be a real estate investment trust
within the meaning of Title 8 of the Corporations and Associations Article of
the Annotated Code of Maryland. It is also intended that the Trust shall carry
on a business as a "qualified REIT subsidiary" as described in the REIT
Provisions of the Internal Revenue Code for so long as it is wholly owned by HRP
and thereafter shall qualify and carry on business as a "real estate investment
trust" as described therein. 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 (but nothing
herein shall preclude the Trust from being treated
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for tax purposes as an association under the Internal Revenue Code); nor shall
the Trustees or Shareholders or any of them for any purpose be, nor be deemed to
be, nor be treated in any way whatsoever as, liable or responsible hereunder as
partners or joint venturers. The relationship of the Shareholders to the
Trustees shall be solely that of beneficiaries of the Trust in accordance with
the rights conferred upon them by this Declaration.
1.4 Definitions. The terms defined in this Section 1.4, wherever used
in this Declaration, shall, unless the context otherwise requires, have the
respective meanings hereinafter specified. Whenever the singular number is used
in this Declaration and when permitted by the context, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders, and vice versa. Where applicable, calculations to be made pursuant to
any such definition shall be made in accordance with generally accepted
accounting principles as in effect from time to time except as otherwise
provided in such definition.
(a) Advisor. "Advisor" shall mean HRPT Advisors, Inc., a Delaware
corporation, or such other Person as the Trustees shall from time to time engage
to supervise the operation of the Trust and to provide the Trust with a program
of investments.
(b) Affiliate. "Affiliate" shall mean, as to any Person, (i) any other
Person who, at the time of determination, is directly or indirectly controlling,
controlled by or under common control with such Person, (ii) any other Person
who, at such time, owns beneficially, directly or indirectly, five percent (5%)
or more of the outstanding capital stock, shares or equity interests of such
Person, or (iii) any Person who is at the time of determination an officer,
director, employee, general partner or trustee of any such Person or of any
Person who, at such time, is controlling, controlled by or under common control
with such Person (excluding any trustee who is not otherwise an Affiliate of
such Person).
(c) Annual Meeting of Shareholders. "Annual Meeting of Shareholders"
shall mean the meeting described in the first sentence of Section 5.9.
(d) Annual Report. "Annual Report" shall have the meaning set forth in
Section 5.11(a).
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(e) Book Value. "Book Value" of an asset or assets shall mean the value
of such asset or assets of the Trust on the books of the Trust, without
deduction for depreciation or other asset valuation reserves and without
deduction for mortgages or other security interests to which such asset or
assets are subject, except that no asset shall be valued at more than its fair
market value as determined by or under procedures adopted by the Trustees, and
the underlying assets of a partnership, joint venture or other form of indirect
ownership, to the extent of the Trust's interest therein, shall be valued as if
owned directly by the Trust.
(f) Bylaws. "Bylaws" shall have the meaning set forth in Section 3.3.
(g) Declaration. "Declaration" or "this Declaration" shall mean this
Declaration of Trust, as amended, restated or modified from time to time. The
use in this Declaration of "herein" and "hereunder" shall be deemed to refer to
this Declaration and shall not be limited to the particular text, article or
section in which such words appear.
(h) Independent Trustee: "Independent Trustee" shall mean a Trustee who
is not then an officer of the Trust or an Affiliate of either HRP or the
Advisor.
(i) Internal Revenue Code. "Internal Revenue Code" shall mean the
Internal Revenue Code of 1986, as now enacted or hereafter amended, or successor
statutes and applicable rules and regulations thereunder.
(j) Invested Assets. "Invested Assets" shall mean the Book Value of all
the Real Estate Investments of the Trust.
(k) Mortgage Loans. "Mortgage Loans" shall mean notes, debentures,
bonds and other evidences of indebtedness or obligations, whether negotiable or
non-negotiable, which are secured or collateralized by Mortgages.
(l) Mortgages. "Mortgages" shall mean mortgages, deeds of trust or
other security interests in Real Property.
(m) Person. "Person" shall mean and include individuals, corporations,
limited partnerships, general partnerships, joint stock companies or
associations, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business
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trusts and other entities and governments and agencies and political
subdivisions thereof.
(n) Real Estate Investment. "Real Estate Investment" shall mean any
direct or indirect investment in any interest in Real Property or in any
Mortgage Loan, or in any Person whose principal purpose is to make any such
investment.
(o) Real Property. "Real Property" shall mean and include land,
leasehold interests (including but not limited to interests of a lessor or
lessee therein), rights and interests in land, and in any buildings, structures,
improvements, furnishings and fixtures located on or used in connection with
land or interests therein, but does not include investments in Mortgages,
Mortgage Loans or interests therein.
(p) REIT. "REIT" shall mean a real estate investment trust as defined
in the REIT Provisions of the Internal Revenue Code.
(q) REIT Provisions of the Internal Revenue Code. "REIT Provisions of
the Internal Revenue Code" shall mean Parts II and III of Subchapter M of
Chapter 1 of Subtitle A of the Internal Revenue Code or any successor provision.
(r) Securities. "Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness 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.
(s) Shareholders. "Shareholders" shall mean as of any particular time
all holders of record of outstanding Shares at such time.
(t) Shares. "Shares" or, as the context may require, "shares" shall
mean the shares of beneficial interest of the Trust as described in Section 5.1
hereof.
(u) Trust. "Trust" shall mean the Trust created by this Declaration.
(v) Trustees. "Trustees" shall mean, as of any particular time, the
original signatories hereto as long as they hold office hereunder and additional
and successor Trustees, and shall not include the officers, employees or agents
of the Trust or the
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Shareholders. Nothing herein shall be deemed to preclude the Trustees from also
serving as officers, employees or agents of the Trust or owning Shares.
(w) Trust Estate. "Trust Estate" shall mean as of any particular time
any and all property, real, personal or otherwise, tangible or intangible, which
is transferred, conveyed or paid to or purchased by the Trust or Trustees and
all rents, income, profits and gains therefrom and which at such time is owned
or held by or for the Trust or the Trustees.
ARTICLE II
TRUSTEES
2.1 Number, Term of Office and Qualifications of Trustees.
(a)(i) The number of Trustees initially need not be more than one (1).
(ii) If a Person other than HRP acquires any Shares of Beneficial
Interest of the Trust, the number of Trustees shall thenceforth be no fewer than
three (3) and no more than seven (7). Upon acquisition by a Person other than
HRP of any such Shares, the exact number of Trustees shall be five (5) until
changed by a two-thirds (2/3) vote of the Trustees or by an amendment of this
Declaration duly adopted by holders of two-thirds (2/3) of the outstanding
Shares entitled to vote. Any vacancies in the Board of Trustees created thereby
shall be filled by a majority of the Trustees then in office. The Board of
Trustees thus constituted shall be classified into three groups, with two (2)
Trustees in Group I, two (2) Trustees in Group II, and one (1) Trustee in Group
III. The Trustee in Group III shall serve for a term ending at the next annual
meeting of Shareholders after such acquisition of Shares by a Person other than
HRP; each Trustee in Group II shall serve for a term ending at the following
annual meeting of Shareholders; and each Trustee in Group I shall serve for a
term ending at the second following annual meeting of Shareholders. After the
respective terms of the groups indicated, each such group of Trustees shall be
elected for successive terms ending at the annual meeting of Shareholders held
during the third year after election.
A majority of the Trustees holding office subject to the foregoing
provisions of this paragraph (ii) shall at all times be Independent Trustees;
provided, however, that upon a failure to
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comply with this requirement as a result of the creation of a vacancy which must
be filled by an Independent Trustee, whether as a result of enlargement of the
Board of Trustees or the resignation, removal or death of a Trustee who is an
Independent Trustee, such requirement shall not be applicable for a period of
ninety (90) days.
(b) The names and business addresses of the initial Trustees, who shall
serve as Trustees until the first annual meeting of Shareholders (unless their
terms shall be otherwise classified pursuant to Section 2.1(a)(ii)) and until
their successors shall have been elected and qualified are as follows:
Name Address
---- -------
Barry M. Portnoy Sullivan & Worcester
One Post Office Square
Boston, MA 02109
Gerard M. Martin M & P Partners Limited
Partnership
400 Centre Street
Newton, MA 02158
The initial Trustees shall be the signatories hereto. No reduction in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term. Subject to the provisions of Section 2.3, each
Trustee shall hold office until the election and qualification of his successor.
There shall be no cumulative voting in the election of Trustees. A Trustee shall
be an individual at least twenty-one (21) years of age who is not under legal
disability. Unless otherwise required by law, 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 be Shareholders or to devote their entire time to the
business and affairs of the Trust.
2.2 Compensation and Other Remuneration. The Trustees shall be entitled
to receive such reasonable compensation for their services as Trustees as the
Trustees may determine from time to time. The Trustees and Trust officers shall
be entitled to receive remuneration for services rendered to the Trust in any
other capacity. Subject to Sections 6.6 and 6.7, such services may include,
without limitation, services as an officer of the Trust, legal, accounting or
other professional services, or
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services as a broker, transfer agent or underwriter, whether performed by a
Trustee or any Person affiliated with a Trustee.
2.3 Resignation, Removal and Death of Trustees. A Trustee may resign at
any time by giving written notice to the remaining Trustees at the principal
office of the Trust. Such resignation shall take effect on the date specified in
such notice, without need for prior accounting. A Trustee may be removed at any
time with or without cause by the affirmative vote either of all the remaining
Trustees or of the holders of Shares representing two-thirds of the total votes
authorized to be cast by Shares then outstanding and entitled to vote thereon,
voting as a single class. A Trustee judged incompetent or for whom a guardian or
conservator has been appointed shall be deemed to have resigned as of the date
of such adjudication or appointment. Upon the resignation or removal of any
Trustee, or his otherwise ceasing to be a Trustee, he shall execute and deliver
such documents as the remaining Trustees shall require for the conveyance of any
Trust property held in his name, shall account to the remaining Trustees as they
require for all property which he holds as Trustee and shall thereupon be
discharged as Trustee. Upon the incapacity or death of any Trustee, his legal
representative shall perform the acts set forth in the preceding sentence and
the discharge mentioned therein shall run to such legal representative and to
the incapacitated Trustee or the estate of the deceased Trustee, as the case may
be.
2.4 Vacancies. If any or all 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 (even though fewer
than three (3)) may exercise the powers of the Trustees hereunder. Vacancies
(including vacancies created by increases in number) may be filled by the
remaining Trustee or by a majority of the remaining Trustees. If at any time
there shall be no Trustees in office, successor Trustees shall be elected by the
Shareholders as provided in Section 5.9. Any Trustee elected to fill a vacancy
created by the resignation, removal or death of a former Trustee shall hold
office for the unexpired term of such former Trustee.
2.5 Successor and Additional Trustees. The right, title and interest of
the Trustees in and to the Trust Estate shall also vest in successor and
additional Trustees upon their qualification, and they shall thereupon have all
the rights and obligations of Trustees hereunder. Such right, title and interest
shall vest in the Trustees whether or not conveyancing
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documents have been executed and delivered pursuant to Section 2.3 or otherwise.
Appropriate written evidence of the election and qualification of successor and
additional Trustees shall be filed with the records of the Trust and in such
other offices or places as the Trustees may deem necessary, appropriate or
desirable.
2.6 Actions by Trustees. The Trustees may act with or without a
meeting. A quorum for all meetings of the Trustees shall be a majority of the
Trustees; provided, however, that, whenever pursuant to Section 6.7 or otherwise
the vote of a majority of a particular group of Trustees is required at a
meeting, a quorum for such meeting shall be a majority of the Trustees which
shall include a majority of such group. 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 (a quorum being present) or without a
meeting by written consents of a majority of the Trustees, which consents shall
be filed with the records of meetings of the Trustees. Any action or actions
permitted to be taken by the Trustees in connection with the business of the
Trust may be taken pursuant to authority granted by a meeting of the Trustees
conducted by a telephone conference call, and the transaction of Trust business
represented thereby shall be of the same authority and validity as if transacted
at a meeting of the Trustees held in person or by written consent. The minutes
of any Trustees' meeting held by telephone shall be prepared in the same manner
as a meeting of the Trustees held in person. The acquisition or disposition of
any investment (other than investments in short-term investment Securities
described in Section 4.1) shall require the approval of a majority of Trustees,
except as otherwise provided in Section 6.7. Any agreement, deed, mortgage,
lease or other instrument or writing executed by one or more of the Trustees or
by any authorized Person shall be valid and binding upon the Trustees and upon
the Trust when authorized or ratified by action of the Trustees or as provided
in the Bylaws.
With respect to the actions of the Trustees, Trustees who have, or are
Affiliates of Persons who have, any direct or indirect interest in or connection
with any matter being acted upon may be counted for all quorum purposes under
this Section 2.6 and, subject to the provisions of Section 6.7, may vote on the
matter as to which they or their Affiliates have such interest or connection.
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2.7 Committees. The Trustees may appoint an audit committee and such
other standing committees as the Trustees determine. Each standing committee
shall consist of two (2) or more members; provided, however, that the Trustees
may appoint a standing committee consisting of at least one Trustee and two non-
Trustees. Each committee shall have such powers, duties and obligations as the
Trustees may deem necessary or appropriate. The standing committees shall report
their activities periodically to the Trustees.
ARTICLE III
TRUSTEES' POWERS
3.1 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 or 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 may do
all such acts and things as in their sole judgment and discretion are necessary
for or incidental to or desirable for carrying out or conducting the business of
the Trust. Any construction of this Declaration or any determination made in
good faith by the Trustees as to the purposes of the Trust or the existence of
any power or authority hereunder shall be conclusive. 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 aforesaid powers or
the general powers or authority or any other specified power or authority
conferred herein upon the Trustees.
3.2 Specific Powers and Authority. Subject only to the express
limitations contained in this Declaration and in addition to any powers and
authority conferred by this Declaration or which the Trustees may have by virtue
of any present or future statute or rule or 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:
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(a) to retain, invest and reinvest the capital or other funds
of the Trust in, and to acquire, purchase, or own, real or personal
property of any kind, whether tangible or intangible, wherever located
in the world, and make commitments for such investments, all without
regard to whether any such property is authorized by law for the
investment of trust funds or produces or may produce income; to possess
and exercise all the rights, powers and privileges appertaining to the
ownership of the Trust Estate; and to increase the capital of the Trust
at any time by the issuance of any additional authorized Shares or
other Securities of the Trust for such consideration as they deem
advisable;
(b) without limitation of the powers set forth in subsection
(a) above, to invest in, purchase or otherwise acquire for such
consideration as they deem proper, in cash or other property or through
the issuance of shares or through the issuance of notes, debentures,
bonds or other obligations of the Trust, and to hold for investment,
the entire or any participating interests in any Mortgage Loans or
interest in Real Property, including ownership of, or participations in
the ownership of, or rights to acquire, equity interests in Real
Property or in Persons owning, developing, improving, operating or
managing Real Property, which interests may be acquired independently
of or in connection with other investment activities of the Trust and,
in the latter case, may include rights to receive additional payments
based on gross income or rental or other income from the Real Property
or improvements thereon; and to invest in loans secured by the pledge
or transfer of Mortgage Loans;
(c) to sell, rent, lease, hire, exchange, release, partition,
assign, mortgage, pledge, hypothecate, grant security interests in,
encumber, negotiate, convey, transfer or otherwise dispose of any and
all the Trust Estate by deeds (including deeds in lieu of foreclosure),
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;
(d) to issue Shares, bonds, debentures, notes or other
evidences of indebtedness, which may be secured or unsecured
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and may be subordinated to any indebtedness of the Trust, to such
Persons for such cash, property or other consideration (including
Securities issued or created by, or interests in, any Person) at such
time or times and on such terms as the Trustees may deem advisable and
to list any of the foregoing Securities issued by the Trust on any
securities exchange and to purchase or otherwise acquire, hold, cancel,
reissue, sell and transfer any of such Securities, and to cause the
instruments evidencing such Securities to bear an actual or facsimile
imprint of the seal of the Trust (if the Trustees shall have adopted
such a seal) and to be signed by manual or facsimile signature or
signatures (and to issue such Securities, whether or not any Person
whose manual or facsimile signature shall be imprinted thereon shall
have ceased to occupy the office with respect to which such signature
was authorized), provided that, where only facsimile signatures for the
Trust are used, the instrument shall be countersigned manually by a
transfer agent, registrar or other authentication agent; and to issue
any of such Securities of different types in combinations or units with
such restrictions on the separate transferability thereof as the
Trustees shall determine;
(e) to enter into leases of real and personal property as
lessor or lessee and to enter into contracts, obligations and other
agreements for a term, and to invest in obligations having a term,
extending beyond the term of office of the Trustees and beyond the
possible termination of the Trust, or having a lesser term;
(f) to borrow money and give negotiable or non negotiable
instruments therefor; or 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
interest in, encumber or hypothecate the Trust Estate to secure any
indebtedness of the Trust or any other of the foregoing obligations of
the Trust;
(g) to lend money, whether secured or unsecured;
(h) to create reserve funds for any purpose;
(i) to incur and pay out of the Trust Estate any charges or
expenses, and to disburse any funds of the Trust, which charges,
expenses or disbursements are, in the opinion
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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 hereof, and for any of the purposes herein;
(j) to deposit funds of the Trust in banks, trust companies,
savings and loan associations and other depositories, whether or not
such deposits will draw interest, the same to be subject to withdrawal
on such terms and in such manner and by such Person or Persons
(including any one or more Trustees or officers, employees or agents,
of the Trust) as the Trustees may determine;
(k) to possess and exercise all the rights, powers and
privileges pertaining to the ownership of all or any Mortgages or
Securities issued or created by, or interests in, any Person, forming
part of the Trust Estate, to the same extent that an individual might
do so, and, without limiting the generality of the foregoing, to vote
or give any 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;
(l) to cause to be organized or assist in organizing any
Person under the laws of any jurisdiction to acquire the Trust Estate
or any part or parts thereof or to carry on any business in which the
Trust shall directly or indirectly have any interest, and to sell,
rent, lease, hire, convey, negotiate, assign, exchange or transfer the
Trust Estate or any part or parts thereof to or with any such Person or
any existing Person in exchange for the Securities thereof or
otherwise, and to merge or consolidate the Trust with or into any
Person or merge or consolidate any Person into the Trust, and to lend
money to, subscribe for 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 interest;
(m) to enter into joint ventures, general or limited
partnerships, participation or agency arrangements and any
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other lawful combinations or associations, and to act as a general or
limited partner;
(n) to elect, appoint, engage or employ such officers for the
Trust as the Trustees may determine, 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 Bylaws; to engage or employ any Persons (including,
subject to the provisions of Sections 6.6 and 6.7, any Trustee or
officer, agent or employee of the Trust and any Person in which any
Trustee, officer or agent is directly or indirectly interested or with
which he is directly or indirectly connected) 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, and to pay compensation from the Trust for services in as
many capacities as such Person may be so engaged or employed; and 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;
(o) to determine or cause to be determined 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 or cause to be
revalued all or any part of the Trust Estate in accordance with such
appraisals or other information as are, in the Trustees' sole judgment,
necessary and/or satisfactory;
(p) to collect, sue for and receive all sums of money coming
due to the Trust, and to engage in, intervene in, prosecute, join,
defend, compromise, abandon or adjust, by arbitration or otherwise, any
actions, suits, proceedings, disputes, claims, controversies, demands
or other litigation relating to the Trust, the Trust Estate or the
Trust's affairs, to enter into agreements therefor, whether or not any
suit is commenced or claim accrued or asserted and, in advance of any
controversy, to enter into agreements regarding arbitration,
adjudication or settlement thereof;
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(q) to renew, modify, 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;
(r) to self-insure or to purchase and pay for out of the Trust
Estate insurance contracts and policies, including contracts of
indemnity, insuring the Trust Estate against any and all risks and
insuring the Trust and/or all or any of the Trustees, the Shareholders,
or the officers, employees or agents of the Trust or Persons who may
directly or indirectly control the Trust 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, officers, employees agents or controlling
Persons whether or not the Trust would have the power to indemnify such
Person or Persons against any such claim or liability;
(s) to cause legal title to any of the Trust Estate to be held
by and/or in the name of the Trustees, or, except as prohibited by law,
by and/or in the name of the Trust or one or more of the Trustees or
any other Person, on such terms, in such manner and with such powers in
such Person as the Trustees may determine, and with or without
disclosure that the Trust or Trustees are interested therein;
(t) to adopt a fiscal year for the Trust, and from time to
time to change such fiscal year;
(u) 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);
(v) to the extent permitted by law, to indemnify or enter into
agreements with respect to indemnification with any Person with which
the Trust has dealings, including without limitation any broker/dealer,
investment bank, investment advisor or independent contractor, to such
extent as the Trustees shall determine;
(w) to confess judgment against the Trust;
(x) to discontinue the operations of the Trust;
(y) to repurchase or redeem Shares and other Securities issued
by the Trust;
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(z) to declare and pay dividends or distributions, consisting
of cash, property or Securities, to the holders of Shares of the Trust
out of any funds legally available therefor; and
(aa) 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 and to carry out the provisions
of this Declaration.
3.3 Bylaws. The Trustees may make or adopt and from time to time amend
or repeal Bylaws (the "Bylaws") not inconsistent with law or with this
Declaration, containing provisions relating to the business of the Trust and the
conduct of its affairs and in such Bylaws may define the duties of the officers,
employees and agents of the Trust.
ARTICLE IV
INVESTMENT POLICY AND POLICIES
WITH RESPECT TO CERTAIN
DISTRIBUTIONS TO SHAREHOLDERS
4.1 Statement of Policy. It shall be the general objectives of the
Trust (i) to provide current income for distribution to Shareholders through
investments in income-producing hotels and hospitality-related facilities and
other real estate investments and (ii) to provide Shareholders with the
opportunity for additional returns from a percentage of gross revenues generated
by the investment properties.
The Trust may make secured borrowings to make permitted additional Real
Estate Investments and secured or unsecured borrowings for normal working
capital needs, including the repair and maintenance of properties in which it
has invested, tenant improvements and leasing commissions. The Trust may make
such borrowings from third parties or from Affiliates of the Advisor. Interest
and other financing charges or fees to be paid on loans from such Affiliates
will not exceed the interest and other financing charges or fees which would be
charged by third party financing institutions on comparable loans for the same
purpose in the same geographic area.
To the extent that the Trust Estate has assets not otherwise invested
in accordance with this Section 4.1, it shall be the
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policy of the Trustees to invest such assets in investments selected by the
Trustees or the Advisor which are consistent with the Trust's intention to
qualify as a REIT under the Internal Revenue Code.
It shall be the policy of the Trustees to make investments and to
conduct the business of the Trust in such manner as to qualify as a REIT and to
comply with the requirements of the Internal Revenue Code with respect to the
composition of investments and the derivation of the income of a real estate
investment trust as defined in the REIT Provisions of the Internal Revenue Code;
provided, however, that 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 Internal Revenue Code, except for that arising from his own wilful
misfeasance, bad faith, gross negligence or reckless disregard of duty.
4.2 Prohibited Investments and Activities. The Trustees shall not:
(a) engage in any undertaking or activity that would disqualify the
Trust as a real estate investment trust under the provisions of the Internal
Revenue Code as long as a real estate investment trust is accorded substantially
the same treatment or benefits under the United States tax laws from time to
time in effect as under Sections 856-860 of the Internal Revenue Code at the
date of adoption of this Declaration; and/or
(b) use or apply land for farming, agriculture, horticulture or similar
purposes in violation of Section 8-302(b) of the Corporations and Associations
Article of the Annotated Code of Maryland.
4.3 Change in Investment Policies. The investment policies set out in
this Article IV may be changed by a vote of a majority of the Trustees.
ARTICLE V
THE SHARES AND SHAREHOLDERS
5.1 Description of Shares. The interest of the Shareholders shall be
divided into 200,000,000 shares of beneficial interest which shall be known
collectively as "Shares", all of which shall be validly issued, fully paid and
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non-assessable by the Trust upon receipt of full consideration for which they
have been issued or without additional consideration if issued by way of share
dividend or share split. There shall be two classes of Shares: 100,000,000
shares of one such class shall be known as "Common Shares", $.01 par value per
share, and 100,000,000 shares of the other such class shall be known as
"Preferred Shares". Each holder of Shares shall as a result thereof be deemed to
have agreed to and be bound by the terms of this Declaration. The Shares may be
issued for such consideration as the Trustees shall deem advisable. The Trustees
are hereby expressly authorized at any time, and from time to time, to provide
for issuance of Shares upon such terms and conditions and pursuant to such
arrangements as the Trustees may determine.
The Trustees are hereby expressly authorized at any time, and from time
to time, without Shareholder approval, to set (or change if such class has
previously been established) the par value, preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, or terms, or conditions of redemption, of the Preferred Shares,
and such Preferred Shares may further be divided by the Trustees into classes or
series.
Except as otherwise determined by the Trustees with respect to any
class or series of Preferred Shares, the holders of Shares shall be entitled to
the rights and powers hereinafter set forth in this Section 5.1: The holders of
Shares shall be entitled to receive, when and as declared from time to time by
the Trustees out of any funds legally available for the purpose, such dividends
or distributions as may be declared from time to time by the Trustees. In the
event of the termination of the Trust pursuant to Section 7.1 or otherwise, or
upon the distribution of its assets, the assets of the Trust available for
payment and distribution to Shareholders shall be distributed ratably among the
holders of Shares at the time outstanding in accordance with Section 7.2. All
Shares shall have equal non-cumulative voting rights at the rate of one vote per
Share, and equal dividend, distribution, liquidation and other rights, and shall
have no preference, conversion, exchange, sinking fund or redemption rights.
Absent a contrary written agreement of the Trust authorized by the Trustees, and
notwithstanding any other determination by the Trustees with respect to any
class or series of Preferred Shares, no holder of Shares or Preferred Shares
shall be entitled as a matter of right to subscribe for or purchase any part of
any new or additional issue of Shares of any class whatsoever of the Trust, or
of securities convertible into
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any shares of any class whatsoever of the Trust, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of
dividend.
5.2 Certificates. Ownership of Shares shall be evidenced by
certificates. Every Shareholder shall be entitled to receive a certificate, in
such form as the Trustees shall from time to time approve, specifying the number
of Shares of the applicable class held by such Shareholder. Subject to Sections
5.6 and 5.14(c) hereof, such certificates shall be treated as negotiable and
title thereto and to the Shares represented thereby shall be transferred by
delivery thereof to the same extent in all respects as a stock certificate, and
the Shares represented thereby, of a Maryland business corporation. Unless
otherwise determined by the Trustees, such certificates shall be signed by the
Chairman, if any, and the President and shall be countersigned by a transfer
agent, and registered by a registrar if any, and such signatures may be
facsimile signatures in accordance with Section 3.2(d) hereof. There shall be
filed with each transfer agent a copy of the form of certificate so approved by
the Trustees, certified by the Chairman, President, or Secretary, and such form
shall continue to be used unless and until the Trustees approve some other form.
In furtherance of the provisions of Sections 5.1 and 5.14(c) hereof,
each Certificate evidencing Shares shall contain a legend imprinted thereon to
substantially the following effect or such other legend as the Trustees may from
time to time adopt:
REFERENCE IS MADE TO THE DECLARATION OF TRUST OF THE TRUST FOR A
STATEMENT OF ALL THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF EACH CLASS OR SERIES OF SHARES THAT THE TRUST IS
AUTHORIZED TO ISSUE, THE VARIATIONS IN THE RELATIVE RIGHTS AND
PREFERENCES OF ANY PREFERRED OR SPECIAL CLASS OF SHARES IN SERIES, TO
THE EXTENT THEY HAVE BEEN FIXED AND DETERMINED, AND THE AUTHORITY OF
THE TRUSTEES TO FIX AND DETERMINE THE RELATIVE RIGHTS AND PREFERENCES
OF SUBSEQUENT SERIES. ANY SUCH STATEMENT SHALL BE FURNISHED WITHOUT
CHARGE ON REQUEST TO THE TRUST AT ITS PRINCIPAL PLACE OF BUSINESS OR
REGISTERED OFFICE.
IF NECESSARY TO EFFECT COMPLIANCE BY THE TRUST WITH REQUIREMENTS OF THE
INTERNAL REVENUE CODE RELATING TO REAL ESTATE INVESTMENT TRUSTS, THE
PURPORTED TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
PROHIBITED
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AND/OR INVALIDATED UPON THE TERMS AND CONDITIONS SET FORTH IN THE
DECLARATION OF TRUST. THE TRUST WILL FURNISH A COPY OF SUCH TERMS AND
CONDITIONS TO THE REGISTERED HOLDER OF THIS CERTIFICATE UPON REQUEST
AND WITHOUT CHARGE.
5.3 Fractional Shares. In connection with any issuance of Shares, the
Trustees may issue fractional Shares or may adopt provisions for the issuance of
scrip including, without limitation, the time within which any such scrip must
be surrendered for exchange into full Shares and the rights, if any, of holders
of scrip upon the expiration of the time so fixed, the rights, if any, to
receive proportional distributions, and the rights, if any, to redeem scrip for
cash, or the Trustees may in their discretion, or if they see fit at the option
of, each holder, provide in lieu of scrip for the adjustment of the fractions in
cash. The provisions of Section 5.2 hereof relative to certificates for Shares
shall apply so far as applicable to such scrip, except that such scrip may in
the discretion of the Trustees be signed by a transfer agent alone.
5.4 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 (subject to Section 3.2(s)), and the Shareholders shall have no
interest therein (other than 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.
5.5 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 or provided for 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 Bylaws 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.
5.6 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,
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and the numbers of the certificates representing the Shares, and in which there
shall be recorded all transfers of Shares. The Trust, the Trustees and the
officers, employees and agents of the Trust shall be entitled to deem the
Persons in whose names certificates are registered on the records of the Trust
to be the absolute owners of the Shares represented thereby for all purposes of
the Trust; but nothing herein shall be deemed to preclude the Trustees or
officers, employees or agents of the Trust from inquiring as to the actual
ownership of Shares. Until a transfer is duly effected on the records of the
Trust, the Trustees shall not be affected by any notice of such transfer, either
actual or constructive.
Shares shall be transferable on the records of the Trust only by the
record holder thereof or by his agent thereunto duly authorized in writing upon
delivery to the Trustees or a transfer agent of the certificate or certificates
therefor, properly endorsed or accompanied by duly executed instruments of
transfer and accompanied by all necessary documentary stamps together with such
evidence of the genuineness of each such endorsement, execution or authorization
and of other matters as may reasonably be required by the Trustees or such
transfer agent. Upon such delivery, the transfer shall be recorded in the
records of the Trust and a new certificate for the Shares so transferred shall
be issued to the transferee and in case of a transfer of only a part of the
Shares represented by any certificate, a new certificate for the balance shall
be issued to the transferor. Any Person becoming entitled to any Shares in
consequence of the death of a Shareholder or otherwise by operation of law shall
be recorded as the holder of such Shares and shall receive a new certificate
therefor but only upon delivery to the Trustees or a transfer agent of
instruments and other evidence required by the Trustees or the transfer agent to
demonstrate such entitlement, the existing certificate for such Shares and such
releases from applicable governmental authorities as may be required by the
Trustees or transfer agent. 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.
5.7 Dividends or Distributions to Shareholders. Subject to Section 5.1,
the Trustees may from time to time declare and pay to Shareholders such
dividends or distributions in cash, property or assets of the Trust or
Securities issued by the Trust, out of
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current or accumulated income, capital, capital gains, principal, interest,
surplus, proceeds from the increase or financing or refinancing of Trust
obligations, or from the sale of portions of the Trust Estate or from any other
source as the Trustees in their discretion shall determine. Shareholders shall
have no right to any dividend or distribution unless and until declared by the
Trustees. The Trustees shall furnish the Shareholders with a statement in
writing advising as to the source of the funds so distributed not later than
ninety (90) days after the close of the fiscal year in which the distribution
was made.
5.8 Transfer Agent, Dividend Disbursing Agent and Registrar. The
Trustees shall have power to employ one or more transfer agents, dividend
disbursing agents and registrars (including the Advisor or its Affiliates) and
to authorize them on behalf of the Trust to keep records to hold and to disburse
any dividends or distributions and to have and perform, in respect of all
original issues and transfers of Shares, dividends and distributions and reports
and communications to Shareholders, the powers and duties usually had and
performed by transfer agents, dividend disbursing agents and registrars of a
Maryland business corporation.
5.9 Shareholders' Meetings. There shall be an annual meeting of the
Shareholders, 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. The Annual Meeting of Shareholders shall be
held no fewer than 30 days after delivery to the Shareholders of the Annual
Report and within six (6) months after the end of each fiscal year, commencing
with the fiscal year ending December 31, 1995. Special meetings of Shareholders
may only be called by a majority of the Trustees. If there shall be 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.
No business shall be transacted by the Shareholders at a special
meeting other than business that is either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Trustees
(or any duly authorized committee thereof) or (ii) otherwise properly brought
before the Shareholders by or at the direction of the Trustees.
The holders of Shares entitled to vote at the meeting representing a
majority of the total number of votes authorized to be cast by Shares then
outstanding and entitled to vote on any
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question present in person or by proxy shall constitute a quorum at any such
meeting for action on such question. Any meeting may be adjourned from time to
time by a majority of the votes properly cast upon the question, without regard
to class, whether or not a quorum is present, and, except as otherwise provided
in the Bylaws, the meeting may be reconvened without further notice. At any
reconvened session of the meeting at which there shall be a quorum, any business
may be transacted at the meeting as originally noticed.
Except as otherwise clearly indicated in this Declaration or the
Bylaws, whenever any action is to be taken by the Shareholders, it shall be
authorized by the affirmative vote of the holders of Shares representing a
majority of the total number of votes authorized to be cast by shares then
outstanding and entitled to vote thereon. At all elections of Trustees, voting
by Shareholders shall be conducted under the non-cumulative method and the
election of Trustees shall be by the affirmative vote of the holders of Shares
representing a majority of the total number of votes authorized to be cast by
shares then outstanding and entitled to vote thereon.
Whenever Shareholders are required or permitted to take any action by a
vote at a meeting of Shareholders, at any time any of the outstanding Shares are
held by a Person other than HRP, such action shall not be taken except by such a
vote at such a meeting of Shareholders and the Shareholders shall have no power
or right to take any action by executing written consents in lieu thereof.
5.10 Proxies. Whenever the vote or consent of a Shareholder entitled to
vote is required or permitted under this Declaration, such vote or consent may
be given either directly by such Shareholder or by a proxy in the form
prescribed in, and subject to the provisions of, the Bylaws. The Trustees may
solicit such proxies from the Shareholders or any of them entitled to vote in
any matter requiring or permitting the Shareholders' vote or consent.
5.11 Reports to Shareholders. Not later than ninety (90) days after the
close of each fiscal year of the Trust following the end of fiscal year 1995,
the Trustees shall mail or deliver a report of the business and operations of
the Trust during such fiscal year to the Shareholders, which report shall
constitute the accounting of the Trustees for such fiscal year. Subject to
Section 8-401 of the Annotated Code of Maryland, the report (the "Annual
Report") shall be in such form and have such content as the Trustees deem
proper. The Annual Report shall include a
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balance sheet, an income statement and a surplus statement, each prepared in
accordance with generally accepted accounting principles. Such financial
statements shall be certified by an independent public accountant based on a
full examination of the books and records of the Trust conducted in accordance
with generally accepted auditing procedure. Manually signed copies of the Annual
Report and of the auditor's certificate will be filed with the Maryland
Department of Assessments and Taxation. A manually signed copy of the
accountant's report shall be filed with the Trustees.
5.12 Fixing Record Date. The Bylaws may provide for fixing or, in the
absence of such provision, the Trustees may fix, in advance, a date as the
record date for determining the Shareholders entitled to notice of or to vote at
any meeting of Shareholders or to express consent to any proposal without a
meeting or for the purpose of determining Shareholders entitled to receive
payment of any dividend or distribution (whether before or after termination of
the Trust) or any Annual Report or other communication from the Trustees, or for
any other purpose. The record date so fixed shall be not less than ten (10) days
nor more than sixty (60) days prior to the date of the meeting or event for the
purposes of which it is fixed.
5.13 Notice to Shareholders. Any notice of meeting or other notice,
communication or report to any Shareholder shall be deemed duly delivered to
such Shareholder when such notice, communication or report is deposited, with
postage thereon prepaid, in the United States mail, addressed to such
Shareholder at his address as it appears on the records of the Trust or is
delivered in person to such Shareholder.
5.14 Shareholders' Disclosure; Restrictions on Share Transfer;
Limitation on Holdings. At such time as any Person other than HRP shall hold any
Shares of Beneficial Interest and thereafter:
(a) Every Shareholder shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of any
Shares as the Trustees deem necessary or appropriate, in their discretion, to
comply with the REIT Provisions of the Internal Revenue Code, or to comply with
the requirements of any taxing authority or governmental agency.
(b) Whenever in good faith the Trustees deem it reasonably necessary to
protect the status of the Trust as a REIT under the Internal Revenue Code, they
may require a statement or affidavit
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from each Shareholder or proposed transferee of Shares setting forth the number
of Shares already owned, directly or indirectly, by such Shareholder or proposed
transferee and any related Person specified in the form prescribed by the
Trustees for that purpose. If, in the opinion of the Trustees, which shall be
binding upon any Shareholder and any proposed transferee of Shares, but subject
to subsection (i) of this Section 5.14, any proposed transfer of Shares would
jeopardize the status of the Trust as a REIT under the Internal Revenue Code,
the Trustees shall have the right, but not the duty, to refuse to permit such
transfer.
(c) As a condition to the transfer (including, without limitation, any
sale, transfer, gift, assignment, devise or other disposition of Shares, whether
voluntary or involuntary, whether beneficially or of record, and whether
effected constructively, by operation of law or otherwise) and/or registration
of transfer of any Shares ("Excess Shares") which could in the opinion of the
Trustees result in
(i) direct or indirect ownership (as hereafter defined) of Shares
representing more than 9.8% in number, value or voting power
of the total Shares outstanding becoming concentrated in the
hands of one owner other than an Excepted Person (as such term
is defined hereafter),
(ii) the outstanding Shares of the Trust being owned by fewer than
one hundred (100) persons or
(iii) the Trust being "closely held" within the meaning of Section
856(h) of the Internal Revenue Code,
such potential owner (a "Proposed Transferee") shall file with the Trust the
statement or affidavit described in subsection (b) of this Section 5.14 no later
than the fifteenth (15th) day prior to any proposed transfer, registration of
transfer or transaction which, if consummated, would have any of the results set
forth above; provided, however, that the Trustees may waive such requirement of
prior notice upon determination that such waiver is in the best interests of the
Trust. Subject to the subsection (i) of this Section 5.14, the Trustees shall
have the power and right (i) to refuse to transfer or issue Excess Shares or
share certificates to any Proposed Transferee whose acquisition of such Excess
Shares would, in the opinion of the Trustees, result in the direct or indirect
beneficial ownership of any Excess Shares by a Person other than an Excepted
Person and (ii) to treat such Excess Shares as having been transferred not to
the Proposed
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Transferee but rather to a trustee, who shall be designated by the Trustees but
unaffiliated with either the Trust or the Proposed Transferee, for the benefit
of one or more organizations described in Sections 170(b)(1)(a) and 170(c) of
the Internal Revenue Code (each such organization being referred to herein as a
"Charitable Beneficiary") that have been designated by the Trustees. Any such
trust shall be deemed to have been established by the Shareholder for the
benefit of the Charitable Beneficiary on the day prior to the date of the
purported transfer to the Proposed Transferee, which purported transfer shall be
void ab initio and the Proposed Transferee shall be deemed never to have
acquired any interest in or with respect to the Excess Shares purportedly
transferred.
Any dividends paid or other distributions made with respect to any
Excess Shares prior to the Trust discovering that such Excess Shares have been
transferred into trust for the Charitable Beneficiary as set forth above shall
be repaid and disgorged by the Proposed Transferee to the Trust and any dividend
or other distribution declared but still unpaid or unmade shall be rescinded as
void ab initio with respect to the Proposed Transferee. Any dividends or other
distributions so repaid, disgorged or rescinded shall then be paid over to the
trustee and held in trust for the Charitable Beneficiary. Any vote cast by the
Proposed Transferee prior to the Trust discovering that such Excess Shares had
been transferred to the trustee shall be rescinded as being void ab initio and
the Proposed Transferee shall be deemed to have given an irrevocable proxy to
the trustee to vote the Excess Shares held for the benefit of the Charitable
Beneficiary.
All Excess Shares shall be deemed to be offered by the trustee for sale
to the Trust or a Person or Persons designated by the Trust for a period of
ninety (90) days following the receipt by the Trust of notice of the event that
has caused the Excess Shares to be transferred into trust as set forth above at
a price equal to the lesser of (i) the price that was paid for the Excess Shares
by the Proposed Transferee and (ii) the market price of the Excess Shares on the
date that the Trust or its designee accepts the trustee's offer to sell.
At the direction of the Trust, the trustee of any such trust shall sell
any Excess Shares held by the trust to a Person whose ownership of such shares
will not, in the judgment of the Trustees, jeopardize the Trust's status as a
REIT (a "Permitted Transferee"). If such a transfer is made, the interests of
the Charitable Beneficiary with respect to the Excess Shares shall
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cease and the proceeds of the sale to the Permitted Transferee shall be payable
to the Proposed Transferee and to the Charitable Beneficiary as follows: The
Proposed Transferee shall be entitled to receive the lesser of (i) the price
paid by the Proposed Transferee for the Excess Shares or, if the Proposed
Transferee did not give value for the Excess Shares, the market price of the
Excess Shares on the day of the event that resulted in the Excess Shares being
transferred into trust as set forth above, and (ii) the price received by the
trustee from the sale of the Excess Shares. Any proceeds from the sale of Excess
Shares in excess of the amount payable to the Proposed Transferee as set forth
above shall be payable to the Charitable Beneficiary.
The following Persons are "Excepted Persons": (i) HRP, (ii) HRPT
Advisors, Inc., a Delaware corporation ("Advisors"), (iii) Affiliates of HRP or
Advisors, (iv) Persons to whom HRP's or Advisor's share ownership is
attributable or whose share ownership is attributable to HRP or Advisors and (v)
other Persons approved by the Trustees, at their option and in their sole
discretion; provided, however, that such approval shall not be granted to any
Person (and shall not extend to any Person described in clause (iii) above)
whose ownership of more than 9.8% (individually or by attribution) in number or
value of the total Shares outstanding would result, directly, indirectly or as a
result of attribution of ownership, in termination of the status of the Trust as
a REIT under the Internal Revenue Code.
If the foregoing provisions shall be determined to be void or invalid
by virtue of any legal decision, statute, rule or regulation, then the Proposed
Transferee of such Excess Shares shall be deemed, at the option of the Trust, to
have acted as agent on behalf of the Trust in acquiring such Excess Shares and
to hold such Excess Shares on behalf of the Trust.
(d) Notwithstanding any other provision of this Declaration to the
contrary, but subject to subsection (i) of this Section 5.14, any purported
acquisition of shares of the Trust (whether such purported acquisition results
from the direct or indirect acquisition or ownership (as hereafter defined) of
Shares) which would result in the disqualification of the Trust as a REIT shall
be null and void. Any such shares may be treated by the Trustees in the manner
prescribed for Excess Shares in subsection (c) of this Section 5.14.
(e) Subject only to subsection (i) of this Section 5.14, nothing
contained in this Section 5.14 or in any other provision of this Declaration
shall limit the authority of the Trustees to
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take such other action as they deem necessary or advisable to protect the Trust
and the interests of the Shareholders by preserving the Trust's status as a
REIT.
(f) If any provision of this Section 5.14 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 provision shall not
be affected and other applications of such provision shall be affected only to
the extent necessary to comply with the determination of such court. To the
extent this Section 5.14 may be inconsistent with any other provision of this
Declaration, this Section 5.14 shall be controlling.
(g) It shall be the policy of the Trustees to consult with the
appropriate officials of any stock exchange on which the relevant Shares of the
Trust are listed as far as reasonably possible in advance of the final exercise
(at any time when the shares are listed on such exchange) of any powers granted
by sections (b) or (c) of this Section 5.14.
(h) For purposes of this Declaration, Shares not owned directly shall
be deemed to be owned indirectly by a Person if that Person or a group including
that Person would be the beneficial owner of such shares, as defined as of May
1, 1995, in Rule 13d-3 under the Securities Exchange Act of 1934 and/or would be
considered to own such shares by reason of the attribution rules of Section 544
or Section 856(h) of the Internal Revenue Code.
(i) Nothing in this Section 5.14 shall preclude the settlement of any
transaction entered into through the facilities of the New York Stock Exchange.
5.15 Special Voting Provisions relating to Certain Business
Combinations and Control Shares. The Trust elects not to be governed by the
provisions of Subtitles 6 and 7 of Title 3 of the Corporations and Associations
Article of the Annotated Code of Maryland.
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ARTICLE VI
LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS,
EMPLOYEES AND AGENTS, AND OTHER MATTERS
6.1 Limitation of Liability of Shareholders, Trustees, Officers,
Employees and Agents for Obligations of the Trust. The Trustees and the
officers, employees and agents (including the Advisor) of the Trust, 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, officers, employees or agents of the Trust and not in
their own individual capacities. Except as otherwise provided in Sections 6.3
hereof with respect to liability of Trustees or officers, agents or employees of
the Trust to the Trust or to Shareholders, no Shareholder, Trustee or officer,
employee or agent (including the Advisor) of the Trust shall be liable for any
debt, claim, demand, judgment decree, liability or obligation of any kind (in
tort, contract or otherwise) of, against or with respect to the Trust or 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, and no Shareholder, Trustee or
officer, employee or agent (including the Advisor) of the Trust shall be subject
to any personal liability whatsoever, in tort, contract or otherwise, to any
other Person or Persons in connection with the Trust Estate or the affairs of
the Trust (or any actions taken or omitted for or on behalf of the Trust), and
all such other Persons shall look solely to the Trust Estate for satisfaction of
claims of any nature arising in connection with the Trust Estate or the affairs
of the Trust (or any action taken or omitted for or on behalf of the Trust).
6.2 Express Exculpatory Clauses and Instruments. Any written instrument
creating an obligation of the Trust shall, to the extent practicable, include a
reference to this Declaration and provide that neither the Shareholders nor the
Trustees nor any officers, employees or agents (including the Advisor) of the
Trust shall be liable thereunder and that all Persons shall look solely to the
Trust Estate for the payment of any claim thereunder or for the performance
thereof; however, the omission of such provision from any such instrument shall
not render the Shareholders, any Trustee, or any officer, employee or agent
(including the Advisor) of the Trust liable nor shall the Shareholders, any
Trustee or any officer, employee or agent (including the Advisor) of the Trust
be liable to any one for such omission.
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6.3 Limitation of Liability of Trustees, Officers, Employees and Agents
to the Trust and to Shareholders for Acts and Omissions. To the fullest extent
permitted by Maryland statutory and decisional law, as amended or interpreted,
no Trustee, officer, employee or agent of the Trust (a) shall be personally
liable to the Trust or its Shareholders and (b) shall have any greater duties
than those established by this Declaration of Trust or, in cases as to which
such duties are not so established, than those to which the directors, officers,
employees and agents of a Maryland business corporation are subject from time to
time. No amendment of this Declaration or repeal of any of its provisions shall
limit or eliminate the limitation on liability provided to Trustees, officers,
employees and agents of the Trust hereunder with respect to any act or omission
occurring prior to such amendment or repeal.
6.4 Indemnification and Reimbursement of Trustees, Officers, Employees,
Agents and Certain Other Persons.
(a) The Trust shall indemnify (i) its Trustees and officers,
whether serving the Trust or at its request any other entity, to the
full extent required or permitted by the General Laws of the State of
Maryland now or hereafter in force, including the advance of expenses
under the procedures and to the full extent permitted by law and (ii)
other employees and agents to such extent as shall be authorized by the
Trustees of the Trust or the Bylaws and be permitted by law. The
foregoing rights of indemnification shall not be exclusive of any other
rights to which those seeking indemnification may be entitled. The
Trustees may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve
and amend from time to time such Bylaws, resolutions or contracts
implementing such provisions or such further indemnification
arrangements as may be permitted by law. No amendment of this
Declaration of Trust or repeal of any of its provisions shall limit or
eliminate the right to indemnification provided hereunder with respect
to acts or omissions occurring prior to such amendment or repeal.
(b) Notwithstanding anything herein to the contrary, and to
the fullest extent permitted by Maryland statutory or decisional law,
as amended or interpreted, no Trustee or officer of the Trust shall be
personally liable to the Trust or its shareholders for money damages.
No amendment of this Declaration or repeal of any of its provisions
shall limit
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or eliminate the limitation on liability provided to Trustees and
officers hereunder with respect to any act or omission occurring prior
to such amendment or repeal.
6.5 Indemnification and Reimbursement of Shareholders. Any Shareholder
made a party to any action, suit or proceeding or against him a claim or
liabilities asserted by reason of the fact that he, his testate or intestate was
or is a Shareholder shall be indemnified and held harmless by the Trust against
judgments, fines, amounts paid on account thereof (whether in settlement or
otherwise) and reasonable expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense of such action, suit,
proceeding, claim or alleged liability or in connection with any appeal therein,
whether or not the same proceeds to judgment or is settled or otherwise brought
to a conclusion; provided, however, that such Shareholder gives prompt notice
thereof, executes such documents and takes such action as will permit the Trust
to conduct the defense or settlement thereof and cooperates therein. In the
event that the assets of the Trust Estate are insufficient to satisfy the
Trust's indemnity obligations hereunder, each Shareholder shall be entitled to
such indemnification pro rata from the Trust Estate.
6.6 Right of Trustees, Officers, Employees and Agents to Own Shares or
Other Property and to Engage in Other Business. Any Trustee or officer, employee
or agent of the Trust 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,
employee or agent of the Trust. Any Trustee or officer, employee or agent of the
Trust may, in his personal capacity or in the capacity of trustee, officer,
director, stockholder, partner, member, advisor or employee of any Person or
otherwise, have business interests and engage in business activities similar to
or in addition to those relating to the Trust, which interests and activities
may be similar to and competitive with those of the Trust and may include the
acquisition, syndication, holding, management, development, operation or
disposition, for his own account, or for the account of such Person or others,
of interests in Mortgages, interests in Real Property, or interests in Persons
engaged in the real estate business. Each Trustee, officer, employee and agent
of the Trust shall be free of any obligation to present to the Trust any
investment opportunity which comes to him in any capacity other than solely as
Trustee, officer, employee or agent of the Trust even if such opportunity is of
a character which, if presented to
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the Trust, could be taken by the Trust. Subject to the provisions of Section
6.8, any Trustee or officer, employee or agent of the Trust may be interested as
trustee, officer, director, stockholder, partner, member, advisor or employee
of, 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, employee or agent
or otherwise hereunder. None of these activities shall be deemed to conflict
with his duties and powers as Trustee or officer, employee or agent of the
Trust.
6.7 Transactions Between Trustees, Officers, Employees or Agents and
the Trust. Except as otherwise provided by this Declaration, and in the absence
of fraud, a contract, act or other transaction between the Trust and any other
Person in which the Trust is interested, shall be valid, and no Trustee or
officer, employee or agent of the Trust shall have any liability as a result of
entering into any such contract, act or transaction, even though (a) one or more
of the Trustees or officers, employees or agents of the Trust are directly or
indirectly interested in or connected with or are trustees, partners, directors,
employees, officers or agents of such other Person, or (b) one or more of the
Trustees or officers, employees or agents of the Trust individually or jointly
with others, is a party or are parties to, or are directly or indirectly
interested in or connected with, such contract, act or transaction; provided
that in each such case (i) such interest or connection is disclosed or known to
the Trustees and thereafter the Trustees authorize or ratify such contract, act
or other transaction by affirmative vote of a majority of the Trustees who are
not so interested or (ii) such interest or connection is disclosed or known to
the Shareholders, and thereafter such contract, act or transaction is approved
by Shareholders holding a majority of the Shares then outstanding and entitled
to vote thereon.
Notwithstanding any other provision of this Declaration, the Trust may
engage in a transaction with (a) any Trustee, officer, employee or agent of the
Trust (acting in his individual capacity), (b) any director, trustee, partner,
officer, employee or agent (acting in his individual capacity) of the Advisor or
any other investment advisor of the Trust, (c) the Advisor or any other
investment advisor of the Trust or (d) an Affiliate of any of the foregoing,
provided that such transaction has, after disclosure of such affiliation, been
approved or ratified by the affirmative vote of a majority of the Trustees not
having any interest in such transaction and not Affiliates of any party to
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the transaction after a determination by them that such transaction is fair and
reasonable to the Trust and the Shareholders.
This Section 6.7 shall not prevent any sale of Shares issued by the
Trust for the public offering thereof in accordance with a registration
statement filed with the Securities and Exchange Commission under the Securities
Act of 1933. The Trustees are not restricted by this Section 6.7 from forming a
corporation, partnership, trust or other business association owned by any
Trustee, officer, employee or agent or by their nominees for the purpose of
holding title to property of the Trust or managing property of the Trust,
provided that the Trustees make a determination that the creation of such entity
for such purpose is in the best interest of the Trust.
6.8 Persons Dealing with Trustees, Officers, Employees or Agents. Any
act of the Trustees or of the officers, employees or agents of the Trust
purporting to be done in their capacity as such, shall, as to any Persons
dealing with such Trustees, officers, employees or agents, be conclusively
deemed to be within the purposes of this Trust and within the powers of such
Trustees or officers, employees or agents. No Person dealing with the Trustees
or any of them or with the officers, employees or agents 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, employees or agents of the Trust, for moneys or other consideration,
shall be binding upon the Trust.
6.9 Reliance. The Trustees and the officers, employees and agents of
the Trust may consult with counsel (which may be a firm in which one or more of
the Trustees or the officers, employees or agents of the Trust is or are
members) and the advice or opinion of such counsel shall be full and complete
personal protection to all the Trustees and the officers, employees and agents
of the Trust in respect of any action taken or suffered by them in good faith
and in reliance on or in accordance with such advice or opinion. In discharging
their duties, Trustees or officers, employees or agents of the Trust, when
acting in good faith, may rely upon financial statements of the Trust
represented to them to fairly present the financial position or results of
operations of the Trust by the chief financial officer of the Trust or the
officer of the Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant fairly to present
the financial position or results of operations of the Trust. The Trustees and
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the officers, employees and agents of the Trust may rely, and shall be
personally protected in acting, upon any instrument or other document believed
by them to be genuine.
ARTICLE VII
DURATION, AMENDMENT AND TERMINATION OF TRUST
7.1 Duration of Trust. The duration of the Trust shall be perpetual;
provided, however, the Trust may be terminated at any time by the affirmative
vote at a meeting of Shareholders of the holders of Shares representing
two-thirds of the total number of Shares then outstanding and entitled to vote
thereon.
7.2 Termination of Trust.
(a) 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 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
(iii) after paying or adequately providing for the payment
of all liabilities, and upon receipt of such
releases, indemnities and refunding agreements, as
they deem necessary for their protection, the
Trustees may distribute the remaining Trust Estate
(in cash or in kind or partly each) among the
Shareholders according to their respective rights.
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(b) After termination of the Trust and distribution of the
Trust Estate to the Shareholders as herein provided, the Trustees shall
execute and lodge among the records of the Trust an instrument in
writing setting forth the fact of such termination and such
distribution, a copy of which instrument shall be filed with the
Maryland Department of Assessments and Taxation, and the Trustees shall
thereupon be discharged from all further liabilities and duties
hereunder and the rights and interests of all Shareholders shall
thereupon cease.
7.3 Amendment Procedure. This Declaration may be amended (except that
the provisions governing the personal liability of the Shareholders, Trustees
and of the officers, employees and agents of the Trust and the prohibition of
assessments upon Shareholders may not be amended in any respect that could
increase the personal liability of such Shareholders, Trustees or officers,
employees and agents of the Trust) at a meeting of Shareholders by holders of
Shares representing a majority (or, with respect to amendments of Article IV,
the second paragraph of Section 5.1, Section 7.1 or this Section 7.3, and
amendments inconsistent with Sections 2.1 and 5.14, at least two-thirds (2/3))
of the total number of votes authorized to be cast in respect of Shares then
outstanding and entitled to vote thereon. The approval of a two-thirds (2/3)
majority of the Trustees shall also be required for any such amendment. A
two-thirds (2/3) majority of the Trustees may, after fifteen (15) days written
notice to the Shareholders, also amend this Declaration without the vote or
consent of Shareholders if in good faith they deem it necessary to conform this
Declaration to the requirements of the REIT Provisions of the Internal Revenue
Code, but the Trustees shall not be liable for failing to do so. Actions by the
Trustees pursuant to Section 5.1 or pursuant to Section 8.6(a) that result in an
amendment to this Declaration shall be effected without vote or consent of
Shareholders.
7.4 Amendments Effective. Any amendment pursuant to any Section of this
Declaration shall not become effective until it is duly filed with the Maryland
Department of Assessments and Taxation.
7.5 Transfer to Successor. The Trustees, with the affirmative vote, at
a meeting approving a plan for this purpose, of the holders of Shares
representing two-thirds (2/3) of all votes cast at a meeting at which a quorum
is present, may (a) cause the organization of a limited partnership,
partnership, corporation, association, trust or other organization to take
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over the Trust Estate and carry on the affairs of the Trust, (b) merge the Trust
into, or sell, convey and transfer the Trust Estate to, any such limited
partnership, partnership, corporation, association, trust or organization in
exchange for Securities thereof, or beneficial interests therein, and the
assumption by such transferee of the liabilities of the Trust and (c) thereupon
terminate this Declaration and deliver such shares, Securities or beneficial
interests among the Shareholders in accordance with such plan.
ARTICLE VIII
MISCELLANEOUS
8.1 Applicable Law. This Declaration is executed and acknowledged by
the Trustees with reference to the statutes and laws of the State of Maryland,
and the rights of all parties and the construction and effect of every provision
hereof shall be subject to and construed according to the statutes and laws of
such State.
8.2 Index and Headings for Reference Only. The index and headings
preceding the text, articles and sections hereof have been inserted for
convenience and reference only and shall not be construed to affect the meaning,
construction or effect of this Declaration.
8.3 Successors in Interest. This Declaration and the Bylaws shall be
binding upon and inure to the benefit of the undersigned Trustees and their
successors, assigns, heirs, distributees and legal representatives, and every
Shareholder and his successors, assigns, heirs, distributees and legal
representatives.
8.4 Inspection of Records. Trust records shall be available for
inspection by Shareholders at the same time and in the same manner and to the
extent that comparable records of a Maryland business corporation would be
available for inspection by shareholders under the laws of the State of
Maryland. Except as specifically provided for in this Declaration or in Title 8
of the Annotated Code of Maryland, Shareholders shall have no greater right than
shareholders of a Maryland business corporation to require financial or other
information from the Trust, Trustees or officers of the Trust. Any Federal or
state securities administrator or the Maryland Department of Assessments and
Taxation shall have the right, at reasonable
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times during business hours and for proper purposes, to inspect the books and
records of the Trust.
8.5 Counterparts. This Declaration may be simultaneously executed in
several counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
8.6 Provisions of the Trust in Conflict with Law or Regulations;
Severability.
(a) The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any one
or more of such provisions (the "Conflicting Provisions") are in
conflict with the REIT Provisions of the Internal Revenue Code, 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. An amendment in recordable form 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, in recordable form, signed by a majority of the
Trustees, shall be conclusive evidence of such determination when filed
with the Maryland Department of Assessments and Taxation. The Trustees
shall not be liable for failure to make any determination under this
Section 8.6(a). Nothing in this Section 8.6(a) shall in any way limit
or affect the right of the Trustees to amend this Declaration as
provided in Section 7.3.
(b) 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 provision were not contained herein.
8.7 Certifications. The following certifications shall be final and
conclusive as to any Persons dealing with the Trust:
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(a) a certification of a vacancy among the Trustees by reason
of resignation, removal, increase in the number of Trustees,
incapacity, death or otherwise, when made in writing by a majority of
the remaining Trustees;
(b) a certification as to the individuals holding office as
Trustees or officers at any particular time, when made in writing by
the secretary of the Trust;
(c) a certification that a copy of this Declaration or of the
Bylaws is a true and correct copy thereof as then in force, when made
in writing by the secretary of the Trust;
(d) a certification as to any actions by Trustees, other than
the above, when made in writing by the secretary of the Trust or by any
Trustee.
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These amendments do not affect the total number of common shares of
beneficial interest, $.01 par value ("Common Shares"), authorized or issued by
the Trust. The amendment and restatement of the Declaration was authorized by
the Board of Trustees of the Trust acting by unanimous written consent on August
18, 1995 and by at least two-thirds of the stockholders of the Trust by means of
unanimous written consent obtained on August 18, 1995.
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IN WITNESS WHEREOF, the undersigned have caused this Declaration of
Trust to be executed as of the day and year first written above.
/s/ Barry M. Portnoy
Name: Barry M. Portnoy
Address: Sullivan & Worcester
One Post Office Square
Boston, MA 02109
ACKNOWLEDGEMENT
Commonwealth of Massachusetts August 18, 1995
ss.
County of Suffolk
There personally appeared the above-named Barry M. Portnoy and
acknowledged the foregoing instrument to be his free act and deed.
Before me, /s/ Mary Louise Larkin
Notary Public
My commission expires:
2/10/2000
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/s/ Gerard M. Martin
Name: Gerard M. Martin
Address: M&P Partners Limited
Partnership
400 Centre Street
Newton, MA 02158
ACKNOWLEDGEMENT
Commonwealth of Massachusetts August 18, 1995
ss.
County of Middlesex
There personally appeared the above-named Gerard M. Martin and
acknowledged the foregoing instrument to be his free act and deed.
Before me, /s/
Notary Public
My commission expires: