EXHIBIT 3.13
DECLARATION OF TRUST
establishing
NORFOLK AVON REALTY TRUST
Agreement and Declaration of Trust executed on and as of the 21st day
of April, 1960, by Lawrence M. Levinson and Robert W. Weinstein hereinafter
called the Trustees, which term shall extend to and include whoever shall from
time to time be the Trustees hereunder.
ARTICLE I
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It is hereby agreed and declared that all real and personal property
of every kind and character, together with the income therefrom and the proceeds
thereof (all of the foregoing being hereinafter sometimes called the trust
property or assets) which the Trustees may at any time acquire shall be held by
them upon the trusts, under the conditions, and with the powers set forth in
this instrument.
ARTICLE II
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All acts of the Trustees relating to this Trust may be done under the
name set forth in the heading of this instrument, or such other name or names as
the Trustees may from time to time adopt.
ARTICLE III - Purpose
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This Trust is created for the purpose of acquiring, holding,
managing, investing or otherwise dealing in real and personal property and
interests in real and personal property and for the purpose of engaging in such
further businesses and activities, whether or not similar thereto, as the
Trustees in their opinion deem advisable. Without limiting the generality of
the foregoing, the purpose of the Trust shall include the borrowing of money
and the issuing of notes, bonds or other obligations, secured or unsecured;
purchasing, leasing, exchanging or otherwise acquiring, holding, selling or
otherwise dealing in any real or personal property or any rights or interests
which the Trustees may consider necessary or convenient for the purpose of its
business; purchasing, acquiring, receiving, holding, selling, or otherwise
dealing in all or any part of the capital stock, notes or other evidences of
debts, or other securities of any individual, corporation, association, or
organization including its own; guaranteeing, indorsing, or otherwise pledging
its credit for the benefit of any other individual, corporation, association or
organization to advance or serve the other interests of this Trust; and
carrying on any other business or activity which may legally be carried on by
the Trust.
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ARTICLE IV - Power of the Trustees
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Except as herein otherwise expressly provided, the Trustees in general shall
have the power to deal with the trust property as if they were the absolute
owners thereof free of all trusts and to take any other action that they may
deem beneficial to the Trust. Without limiting the generality of the foregoing,
they shall also have the following powers:
A. To purchase or otherwise acquire and to hold, develop, improve,
and manage any real or personal property; to invest any of the trust property in
such manner as they may deem advisable without being limited as to the kind or
amount of any investment; to sell, exchange or otherwise dispose of and convey
any real or personal property or any interest therein for considerations and
upon such terms and conditions as they may deem advisable; to join with others
in the acquisition or development of real or personal property or any interest
therein; to borrow money or acquire assets on a purchase money loan basis, and
to issue bonds, notes or other evidences of indebtedness, and to secure the same
by mortgage or pledge of all or any part of the trust assets, provided that any
such obligations shall bind the trust property only, and not the Trustees or
shareholders
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individually; to lend money without or with security; to execute leases as
lessor or as lessee, including leases for terms expiring after the expiration of
the Trust; to hold any property or any interest in property in the name of
agents or nominees without disclosure of the Trust; and to make such contracts,
agreements, undertakings, and commitments in the name and behalf of the Trust as
they deem appropriate. No license of court shall be requisite to the validity
of any transaction entered into by the Trustees with respect to the trust
estate.
B. To prosecute, compromise, submit to arbitration, or abandon any
claim or dispute involving the trust property or assets and pay all debts,
expenses or claims against them upon such evidence as they deem proper.
C. To adopt by-laws and rules in the nature of by-laws for the
administration of the Trust and to change the same from time to time; and such
by-laws or rules shall control the action of the Trust while in effect, but no
person dealing with the Trust or the Trustees need inquire as to the existence
of the same or compliance therewith, but may rely completely upon this Trust
instrument as amended in accordance with the provi-
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sions hereof or upon any certificate as hereinafter provided.
D. To deposit moneys of the Trust in any bank or trust company, or
with any bankers, and to entrust to any bank or banker, trust company or safe
deposit company for safekeeping any of the securities and any documents and
papers comprised in or relating to the trust estate.
E. To appoint a President, Treasurer, Secretary, and such other
officers as the Trustees deem appropriate. An officer may, but need not, be a
Trustee. Such officers shall be subject to removal by the Trustees at any time.
To employ and discharge agents and employees, legal counsel, accountants, and
other professional advisers, any of whom may, but need not be, a Trustee or
officer. To delegate to any of the officers, agents, employees, or to one or
more of the Trustees, any power or powers of the Trustees. No Trustee shall be
liable for the act or neglect of any other Trustee, nor of any officer, agent,
or employee.
F. Any Trustee may by an instrument in writing grant to any other
Trustee the power and authority to exercise on behalf of the Trust any of the
powers, authority and discretion of such grantor Trustee hereunder, so that
while said delegation is in effect the Trustee to
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whom such powers, authority and discretion are granted may exercise the same as
if he were acting in the capacity of Trustee in place and stead of such grantor
in addition to acting as Trustee in his own capacity; and in the event of such
grant, the grantee Trustee shall, in all matters requiring or permitting the
vote of the Trustees, have one vote in his own capacity and one vote as grantee
of each Trustee who has made such grant of powers, authority and discretion to
him.
G. The Trustees may determine reasonable compensation for themselves
as Trustees and also the compensation of any officer, employee or agent of the
Trust.
ARTICLE V - Appointment, Resignation, Removal
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and Other Matters Concerning Trustees
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A. Not more than one Trustee shall be required hereunder, and not
more than seven Trustees shall be permitted. No Trustee shall be required to be
a shareholder, nor to give bond or surety in any form.
B. Any Trustee may resign by a written instrument signed and
acknowledged by such Trustee and such resignation shall become effective when
such instrument is recorded in the Registry of Deeds for Norfolk County,
Massachusetts.
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C. Successor and additional Trustees may be appointed by the holders
of a majority of the voting shares outstanding, and no meeting of shareholders
need be held for this purpose if the holders of a majority of such shares vote
the same by an instrument in writing. Any such appointment shall become
effective upon the recording in said Registry of a certificate signed by any
Trustee (or by the holders of a majority of the voting shares if there is then
no Trustee), naming the Trustee so appointed and stating that the appointment
was so made, together with the written acceptance by the new Trustee. Upon the
appointment of any successor Trustee, title to the trust estate shall thereupon
without any conveyance vest in said succeeding Trustee jointly with the
remaining Trustee or Trustees, if any.
D. Any Trustee may be removed by the holders of a majority of the
voting shares outstanding, and no meeting of shareholders need be held for this
purpose if the holders of a majority of such shares vote the same by an
instrument in writing. Any such removal shall become effective upon the
recording in said Registry of a certificate signed by all Trustees except the
removed Trustee stating that the removal was so effected by the shareholders
and declaring the removal to be effective.
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E. Except as otherwise expressly provided in this instrument, any
action or vote taken by or any decision made by the Trustees shall be by a
majority of the then Trustees. No meeting, formal or informal, shall be
required for them to act.
ARTICLE VI - Execution of Instruments
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A. All instruments, documents, and papers, whether or not under seal
(including, but not limited to, deeds, mortgages, bills of sale, leases,
contracts, releases, notes, checks, drafts, securities, assignments,
endorsements, and proxies) may be signed, sealed, executed, acknowledged, and
delivered on behalf of the Trust by such Trustee or Trustees, officer or agent
as shall be authorized by action or vote of the Trustees. Any instrument
(including, but not limited to, the instruments enumerated in the foregoing
sentence) executed by a majority of the Trustees shall be conclusive evidence in
favor of every person relying thereon or claiming thereunder at the time of the
delivery thereof that this Trust was in full force and effect and that the
Trustees exe cuting such instrument were duly authorized to execute and deliver
the same and that the execution and delivery thereof were in every respect
binding upon the Trustees and the Trust.
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B. All agreements, obligations, instruments, papers, and actions by
or in the name and behalf of this Trust shall be made, incurred, executed,
signed or taken by or in the name of the Trust, and shall, in such cases and in
such manner as the Trustees deem advisable, expressly exempt the Trustees and
shareholders from personal liability and expressly provide that the trust
property alone shall be liable thereunder or by reason thereof.
C. The Trustees may from time to time adopt and use a form of seal
for this Trust, forms for certificates representing shares hereunder, and such
other forms as they deem appropriate.
ARTICLE VII - Protection of Persons
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Dealing with Trust
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A. No corporation, person, or transfer agent shall be held to examine
into the trusts hereunder, but such corporation, person, or transfer agent may
deal with trust property as if the Trustees were the owners thereof free of all
trusts; and no such corporation, person, or transfer agent dealing with the
Trustees shall be required to see to the application of any money or property
paid or delivered to any Trustee or agent of the Trustees.
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B. A certificate signed by a majority of the Trustees for the time
being, or by any one Trustee and the Secretary certifying as to who are the
Trustees for the time being or as to any action by the Trustees or shareholders
or as to any other fact affecting or relating to the trust or the trust
instrument, may be treated as conclusive evidence thereof by persons dealing
with this Trust.
C. Any Trustee, shareholder, officer, or agent of this Trust or any
firm, trust, corporation, concern or estate in which he is interested as a
member, trustee, director, officer, beneficiary, shareholder, agent fiduciary,
or otherwise, may sell to, buy from, contract with and otherwise deal with this
Trust as freely and effectually as though no interest or fiduciary relation
existed; and the Trustees hereunder shall have power to exercise or concur in
exercising all powers and discretions given to them hereunder or by law,
notwithstanding that they or any of them may have a direct or indirect interest,
personally or otherwise, in the mode, result or effect of exercising such powers
or discretions.
ARTICLE VIII - Protection of Trustees
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and Shareholders
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A. A Trust, and not a partnership, is created by this Declaration.
The relationship of the shareholders to the Trustees is solely that of cestuis
quo trust, and neither the shareholders nor the Trustees are partners.
B. No shareholder shall be personally liable for any obligation or
liability incurred by this Trust or by the Trustees, and the Trustees shall have
no right of indemnity or exoneration against the shareholders in respect
thereof.
C. Subject to Paragraph F of this Article, no Trustee shall be
personally liable for any obligation or liability incurred by this Trust or by
the Trustees, and each Trustee shall be entitled to reimbursement and
exoneration out of the trust estate according to law.
D. The trust estate alone shall be liable for the payment or
satisfaction of all obligations and liabilities incurred in carrying on the
affairs of this Trust.
E. Proceedings against this Trust may be brought against the Trustees
as Trustees hereunder but not personally. The Trustees shall be parties thereto
only insofar as necessary to enable such obligation or liability to be enforced
against the trust estate.
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F. No Trustee shall be liable to this Trust or the shareholders
except for his own acts, neglects and defaults in bad faith.
ARTICLE IX - Shares and Shareholders
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A. The beneficial interests hereunder shall be represented by
transferable shares consisting of such number of common shares, with or without
par value, with such voting rights, and such number of preferred shares, with or
without par value, as the Trustees may determine. The Trustees from time to
time may issue said shares, including fractional shares, upon such terms and
conditions, in such amounts, to such persons, at such times and for such
consideration as they may from time to time be advisable. The number of shares
authorized shall be unlimited. If, after the original issue of shares, the
Trustees from time to time issue additional shares, no holder of shares shall be
entitled to subscribe to any of the additional shares except in the discretion
of the Trustees.
B. The holders of common shares shall be entitled pro rata to such
distributions of income and/or capital as the Trustees from time to time
determine, and upon the termination of the Trust shall be entitled to a
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pro rata distribution of the trust property in the method hereinafter set forth.
C. Except as specifically otherwise provided in this instrument as it
may from time to time be amended or as the Trustees may determine, the holders
of common stock shall have exclusive voting power on any matter on which the
vote or consent or shareholders is authorized or required to be given under the
terms hereof, provided that no amendment of the Declaration of Trust may be made
which modifies and adversely affects the rights of holders of preferred stock
except with the written assent of the holders of a majority of the outstanding
shares of preferred shares, nor which enlarges the rights of the preferred
shares or creates any new class of shares having precedence or priority over the
common, without the written assent of the holders of a majority of the
outstanding common shares.
D. Each shareholder shall be entitled to a certificate signed by a
Trustee and the Secretary or an assistant Secretary.
E. Shares shall be transferable only on the books of the Trust by
assignment in writing by the person entitled to make such transfer hereunder or
his agent or legal representative, upon surrender and cancellation of
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the certificate or certificates therefor. The Trustees may treat the holder of
record for all purposes as the owner of the shares or shares standing in his
name.
F. Shareholders, insofar as action by them is required or permitted,
may act with or without a meeting and may act either personally or through their
agent or proxies or through their guardians or other legal representatives.
The holders of a majority of the shares shall constitute a quorum at any
meeting.
G. Meetings of shareholders may be called by any Trustee or by any
shareholder. A written notice stating the time, place and purposes of the
meeting shall be mailed to all shareholders at least seven days before such
meeting by the person calling such meeting or by the Trustees. Any shareholder
may by writing waive notice of any meeting, assent to the record thereof after
the meeting, and give proxies, and any one of such procedures or combination
thereof shall have the same effect as if the shareholders attended the meeting
and voted his shares there.
ARTICLE X - Termination
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This trust shall terminate upon the expiration of twenty (20) years
after the death of all the original Trustees, and may be sooner terminated by an
instrument
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or instruments in writing, signed by a majority of the Trustees and by the
holders of a majority of the voting shares outstanding. No such termination
shall be deemed effective until there has been recorded in said Registry either
such instrument or instruments or a certificate by a majority of the Trustees
hereunder setting forth such termination and stating that the same was made by
instrument or instruments in writing as herein provided. Upon the termination
of the Trust, subject to the payment or making provision for the payment of all
obligations and liabilities of the Trust and the Trustees and payment to the
holders of preferred shares, if any, the net assets of the Trust shall be
distributed among the common shareholders, pro rata, share for share. In making
any such distribution, the Trustees may sell all or any portion of the trust
property and distribute the net proceeds thereof, or they may distribute any of
the assets or undivided interests therein in kind, at such valuations as they
may deem to be fair, their determination to be conclusive upon all parties. Upon
termination of the Trust; the foregoing powers shall be deemed to include the
power to transfer the trust property or any portion thereof to any association,
trust or corporation in exchange for securities of the association, trust or
corporation and for the
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purpose of distributing the securities so received to shareholders in the manner
above set forth. In making any transfer pursuant to distribution, they may make
such transfer subject to any or all of the liabilities of the Trust or on
condition of the shareholders assuming in a manner satisfactory to the Trustees
the obligation to pay and discharge the obligations and liabilities of the
Trust. The powers of the Trustees shall continue until the affairs of the Trust
have been wound up.
ARTICLE XI - Recording
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The Trustees shall record this instrument in the Registry of Deeds for
Norfolk County, Massachusetts. Any person dealing with the Trustees or any of
them or the trust property, may assume without further inquiry that there has
been recorded or filed in said registry notice of all amendments of or additions
to the trust instrument, of any resignation, removals, appointments or other
changes of Trustees or of any other matter affecting the terms or existence of
this Trust, and all such persons shall be fully protected in relying on the
state of the record said Registry without further inquiry. Any person dealing
with the trust property or the Trustees or any of them may however, without
resort to said Registry, always rely on a certificate as authorized under Para-
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graph B of Article VII. The Trustees may record this instrument in any other
place they deem appropriate.
ARTICLE XII - Amendments
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The terms of this Declaration of Trust may from time to time be
amended, added to or rescinded in any particular whatsoever by vote of, or by a
written instrument signed by a majority of the Trustees and assented to or
approved in writing by the holders of a majority of the outstanding voting
shares. Such action shall become effective upon the recording in said Registry
of a certificate signed by a majority of the Trustees setting forth such
amendment, addition or rescission, and stating that the same was made by
instrument or instruments in writing as above provided.
ARTICLE XIII - Miscellaneous
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This document shall be governed by and construed under the laws of
the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF five identical copies hereof have been executed
under seal by the Trustees on the day and date first above written.
/s/ Lawrence M. Levinson )
--------------------------)
Lawrence M. Levinson ) As
)Trustees
/s/ Robert W. Weinstein ) and not
--------------------------)Personally
Robert W. Weinstein )
)
--------------------------)
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