ARTICLE I
BUSINESS NAME AND PRINCIPAL
OFFICE OF TRUSTEES
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1. The name of the Trust created hereby shall be "175 AMLEGION
REVERE REALTY TRUST," which name shall refer to the Trustees collectively as
Trustees, but not as individuals or personally; and in which name they may, as
hereinafter provided and as Trustees and not as individuals, make and execute
contracts and all kinds of instruments, conduct business, acquire and convey
real or personal property and sue and be sued.
2. The principal office of the Trustees shall be at 175 McClellan
Highway, East Boston, Massachusetts 02128-9114 or at such other place as the
Trustees may from time to time designate.
ARTICLE II
DEFINITIONS
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In this instrument wherever the context permits, the following words
shall have respectively the following meanings:
1. "Trustee" or "Trustees" shall mean a Trustee or Trustees for the
time being under this Declaration however appointed.
2. "Shareholder" or "shareholders" shall mean a person or persons
for the time being a holder or holders of record on the books of the Trust of
transferable shares in the Trust hereby created.
3. "Trust estate" shall mean any and all property, whether real,
personal or mixed, held by the Trustees under the terms and provisions of this
Declaration.
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4. "Person" or "persons" shall mean any person or persons whether
acting in an individual, representative or fiduciary capacity, and in any firm
or firms, corporation or corporations, partnership or partnerships, business
trust or business trusts, so-called, and any legal entity or entities
whatsoever.
5. "Majority vote" shall mean a vote by a majority of the number of
shares of this Trust then outstanding hereunder and entitled to vote.
ARTICLE III
PURPOSES
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The Trust is established for the purpose of investing and
reinvesting in, and the purchase, improvement, development, holding and
management of, real and/or personal property of every kind and nature, and for
the purpose of enabling the Trustees to hold and manage the trust estate. All
property now held or hereafter acquired by the Trustees or any of them or their
successors in their capacities as Trustees hereunder, and all income and profits
therefrom, shall be held by them in trust and shall be by them managed,
administered, received, collected, disbursed, disposed of or distributed for the
benefit of the shareholders in the manner herein provided and subject to the
terms and conditions set forth in this Declaration and any amendments thereto.
It is expressly declared that there is hereby created a trust of the type
commonly known as a business trust, and not a partnership or a joint venture or
joint stock association.
ARTICLE IV
TRUSTEES: NUMBER, TERM OF OFFICE,
ELECTION AND RELATED MATTERS
---------------------------------
1. The Trustees hereunder shall be three (3) in number until a
different number shall be fixed by the shareholders as herein provided. At any
annual meeting of the shareholders, or at any special meeting of the
shareholders called for the purpose, such number may be at any time and from
time to time increased to such number as may be fixed by majority vote, and at
any such meeting such number of Trustees, if then greater than three (3), may be
reduced by a similar vote to any number not less than three (3).
2. The Trustees herein named shall hold office until the first
annual meeting of the shareholders, and every Trustee hereafter elected shall
hold office until the annual meeting of the shareholders next succeeding his
election; and in either case, each such Trustee shall con-
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tinue in office after any such annual meeting until his respective successor has
been duly elected and has qualified as hereinafter provided.
3. At each annual meeting of the shareholders they may, by a
majority vote, a quorum being present, elect Trustees for the ensuing year of
such number as may be then fixed as hereinbefore provided, and any one or more
of the Trustees previously in office may be re-elected. At any special meeting
at which the number of Trustees is increased as hereinbefore provided, the
shareholders may by majority vote, a quorum being present, elect the additional
Trustees so provided for.
4. In the event of a vacancy or vacancies in the office of Trustees,
for any reason whatsoever, the remaining Trustee or Trustees shall appoint a
successor or successors to fill such vacancy or vacancies and to serve until the
next annual meeting of the shareholders; provided, however, that until such
successor or successors shall have been appointed as aforesaid and shall have
qualified as hereinafter provided, the remaining Trustees or Trustee, if there
is only one, shall have and may exercise all of the powers of the Trustees
hereunder. In the event that, for any reason whatsoever, there shall be no
remaining Trustee acting hereunder, the shareholders may, at a meeting called
for the purpose, by majority vote, appoint successor Trustees.
5. Every Trustee elected by the shareholders or appointed to fill a
vacancy by the Trustees as hereinabove provided shall be required, except in
case of re-election, to qualify as such Trustee by signing, sealing,
acknowledging and depositing with the Secretary of the Trust, within twenty (20)
days after his election, a written statement containing a declaration of his
acceptance of such office and of the trusts, duties and obligations imposed upon
him as such Trustee hereunder. In the event of the failure of any person so
elected to qualify in the manner herein provided, then the election of such
person shall be null and void and the vacancy thereby created shall be filled by
the Trustees as in paragraph 4 of this Article provided.
6. Any Trustee may be removed during his term at any regular meeting
of the Trustees or any meeting specially called for that purpose, by vote of a
majority of all the Trustees, for any cause by them deemed sufficient.
7. Any Trustee may resign his trust at any time by written
instrument, signed and acknowledged by him in the manner appropriate for
acknowledgment of deeds in Massachusetts and delivered to the President,
Secretary, or to any other Trustee.
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8. Whenever any change in Trustees takes place hereunder for any
reason whatsoever, the title to the entire trust estate as previously vested in
the former Trustees shall immediately vest in the Trustees holding office as a
result of such change, without any conveyance from any outgoing Trustee or from
the heirs, executors or administrators of any deceased Trustee, or from the
continuing Trustees or any of them; but notwithstanding this provision, it shall
be the duty of each outgoing Trustee, and the legal representative or
representatives of any deceased Trustee or of any Trustee who may have become
incompetent, and of each continuing Trustee, to execute, acknowledge and deliver
such instruments of conveyance as shall be deemed by the Trustees advisable and
appropriate for the purpose of confirming the title vested as aforesaid in the
Trustees then holding office.
9. Any instrument signed or action taken by any one (1) of the
Trustees then in office shall be conclusive and binding as if taken or signed by
all of the Trustees, except that any certificate signed in accordance with the
provisions of paragraph 3 of Article XI hereof shall have the same effect as if
signed by all the Trustees, and except further that any check or other
instrument signed by the Treasurer as provided in Paragraph 3 of Article VII
hereof, or any check or other instrument signed by any other person or persons
to whom such power may have been delegated under the provisions of Paragraph 12
of Article V and Paragraph 1 of Article VII, or any action taken by any agent,
manager or assistant appointed under and acting pursuant to the provisions of
Paragraph 11 of Article V hereof, shall have the same effect as if signed or
taken by all the Trustees.
10. The Trustees shall, at the annual meeting of the shareholders,
make a financial report to the shareholders for the fiscal year next preceding.
11. The Trustees may receive such compensation, regular or special,
as they shall determine to be reasonable and proper.
ARTICLE V
TRUSTEES' POWERS
----------------
The Trustees shall hold the legal title to the trust estate and
shall have full power to deal therewith as if they were the beneficial owners
thereof, free from any control or dominion by the shareholders; and without in
any way limiting the generality of the foregoing, the Trustees shall have the
following powers, and such additional powers as may be incidental thereto:
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1. To purchase, or to take under lease, own, maintain, acquire,
develop, and improve real or personal property or any interest or rights therein
without limit as to kind or amount, and to sell, convey, exchange, or otherwise
dispose of the same free and discharged of all trusts hereunder.
2. To construct, alter, maintain, repair, demolish, rebuild and
improve buildings, whether on land of the Trustees or upon other lands; and to
convert and appropriate any such lands into, and build and form, roads, streets
and all other conveniences.
3. To make such agreements with owners of adjoining property in
regard to easements of every sort and description, boundary lines, party walls
or other like subjects of agreement as they may deem necessary or convenient for
the purposes hereof; and to register or confirm in the Land Court of the
Commonwealth of Massachusetts title to any real property in the trust estate.
4. To lease, or to let to tenants at will, upon such terms and
conditions and with such stipulations and agreements as they may deem desirable,
any part or parts of the trust estate, and to accept surrenders of leases and
tenancies; and otherwise to deal in leases in any manner which the Trustees may
deem expedient or desirable, including without limitation the power to assign,
take assignments of, amend, terminate, renew and extend existing or future
leases.
5. To borrow money in such amount and in such manner as they deem
advisable, and to issue notes and other obligations therefor, and, if they shall
so determine, to secure the payment thereof by mortgage (including purchase
money mortgage) or pledge of any part or parts of the trust estate, binding
however the trust estate only and not the Trustees or the shareholders
individually.
6. To refund, discharge and pay off or renew, replace or extend any
mortgage, pledge or charge now or in the future existing upon the trust estate
or any part thereof; and to assign, extend, discharge and give partial releases
from any mortgage which may be a part of the trust estate; and otherwise to deal
in mortgages in any manner which the Trustees may deem expedient or desirable.
7. To lend money to any person, and on such terms, with or without
security, as the Trustees shall determine.
8. To make any compositions or arrangements with tenants, creditors
or debtors, and to compromise and settle any claims, damages and judgments in
favor of the Trustees
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or against the Trustees or the trust estate, in such amounts, and upon such
terms or conditions as the Trustees shall in their sole discretion determine,
and to make or receive payment therefor, as the case may be; to institute or
defend against any proceedings at law or in equity; to enforce or maintain any
rights in respect to the trust estate; and to submit any dispute to arbitration.
9. To declare dividends pursuant to the provisions of Article X
hereof; and from time to time, for such consideration and upon such terms and
conditions as the Trustees shall in their sole discretion determine, to issue,
sell and exchange, pursuant to the provisions of Article VIII of this Trust, and
to purchase and redeem, shares of this Trust.
10. To exercise any and all powers and rights as holder of any
stocks, shares, bonds, securities or obligations forming a part of the trust
estate to the same extent that any individual holder thereof could exercise the
same.
11. To employ or consult engineers, brokers, accountants,
architects, auctioneers, attorneys, or specialists in any field of endeavor
whatsoever, whether or not disinterested, and whether or not Trustees, agents or
representatives of this Trust, and to determine whether or not to act on the
advice of any such person; to employ such managers, agents or other assistants
as they shall think proper for the conduct of the business of the Trust, and to
delegate to any such person such duties, responsibilities and powers as they in
their discretion deem advisable; and to fix the compensation, in such amounts as
the Trustees shall determine, for the services for any person so employed or
consulted.
12. To delegate to and among any one or more of themselves such of
their powers or duties hereunder as they shall in their sole discretion
determine; and to appoint officers as in Article VII provided, and a writing
signed as in paragraph 3 of Article XI provided shall be sufficient evidence of
such delegation or appointment.
13. To execute, seal, acknowledge and deliver deeds, releases,
agreements and all other instruments whatsoever which the Trustees deem
expedient in implementing the purposes of this Trust.
14. To pay out any money which the Trustees deem expedient or proper
in connection with the administration of the trust estate.
15. To allow or cause, notwithstanding any other provisions of
Article V hereof, any property, whether real or personal, to be transferred into
the name or names of any
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one or more of them, or into the name or names of any nominee or other person
designated by them, and to allow any such property to remain in such names for
so long as they in their sole discretion may determine, and the same may be done
in such manner as not to give notice that such property is affected by any
trust.
16. To deposit any funds of this Trust in any bank or trust company,
and entrust to such bank or trust company, or to a safe deposit company for
safekeeping, any of the securities, monies, documents and papers belonging to or
relating to the trust estate; and in addition to the powers given to the
Treasurer as hereinafter provided to delegate to any one or more of their number
or to any other person or persons, as they may determine, the power to deposit,
withdraw, and draw checks on any funds of the Trust.
17. To give money or property of the Trust, including shares of this
Trust, to or for such charitable purposes or objects and in such amounts as they
may in their discretion determine.
18. To invest and reinvest the money and assets of the trust estate
in such manner as they may from time to time in their sole discretion determine,
and to establish contingent or sinking funds, or both; and for such purposes to
set aside periodically from the income of the Trust such money as they in their
discretion may deem proper, and to invest and reinvest such funds.
19. To determine in their sole discretion whether receipts by them
shall constitute principal or income, and to allocate between principal and
income any of the funds of the Trust, and to determine whether expenses or other
payments shall be allocated to principal or income.
20. To enter into and execute mortgages, leases, contracts and any
other obligations, instruments or undertakings which may bind the Trustees and
the trust estate for periods of time extending beyond the possible duration of
this Trust.
21. To construe any of the provisions of this Declaration of Trust,
and to act on any such construction, and their construction of the same and any
action taken in good faith pursuant thereto shall be final and conclusive on all
parties in interest.
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ARTICLE VI
RESPONSIBILITY AND RIGHTS OF TRUSTEES
-------------------------------------
1. No Trustee shall be liable for any act or default whatsoever of
any other Trustee or of any agent, employee or representative of the Trustees;
nor shall any Trustee be liable for any error of judgment, or for anything done
or omitted by him in good faith; and each Trustee shall be answerable and
accountable only for his own individual receipts, and for his own individual
receipts, and for his own willful acts, neglects and defaults constituting a
breach of trust knowingly committed by him in bad faith.
2. Unless expressly required by vote of the Trustees, no Trustee
shall be required to give any bond or surety to secure his performance as
Trustee hereunder.
3. The Trustees, and each of them, and each agent, employee or
representative of the Trustees shall be entitled to reimbursement out of the
trust estate for their or his reasonable expenses and outlays and shall be
indemnified and reimbursed for any personal liability, loss, costs, expense or
damage by then or him incurred or suffered in the administration of the trust
estate or in conducting any business or performing any act authorized or
permitted by this Declaration of Trust or any amendment thereto, but such
indemnity or reimbursement shall be limited to the trust estate, and no
shareholder shall be personally or individually liable therefor to any extent.
ARTICLE VII
OFFICERS
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1. The Trustees shall from time to time appoint from within their
number a President, a Treasurer and a Secretary, and such other officers as they
may deem proper from within or without their number, and may permit any officer
so appointed to resign and may remove any such officer for any cause by the
Trustees deemed sufficient; and they may fill any vacancy and appoint temporary
officers to serve during the absence or disability of the regular officers or
for any specific purpose. Every officer so appointed, unless otherwise
determined by the Trustees, shall hold his office until the first meeting of the
Trustees following the next succeeding annual meeting of the shareholders and
thereafter until his successor has been chosen. Such officers shall receive such
compensation, if any, as may from time to time be fixed by the Trustees and they
shall have respectively, in addition to the powers and duties conferred and
imposed upon them by the express provisions of this Declaration of Trust, such
further power and
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duties as may be conferred and imposed upon them or delegated to them from time
to time by the Trustees.
2. The President, if present, shall preside at all meetings of the
Trustees and of the shareholders and in his absence a Temporary Chairman shall
be chosen by the meeting. He shall, with the Treasurer, sign all certificates
for shares of the Trust.
3. The Treasurer shall keep accurate books of all the financial
transactions of the Trust. If required by the Trustees, the Treasurer shall give
bond for the faithful discharge of his duties and the premium on such bond shall
be paid out of the trust estate. He shall deposit all funds of the Trust in such
depositaries as may be selected by the Trustees, pay all its bills, collect all
monies due to the Trust, and with the President sign all certificates for shares
of the Trust. He may withdraw all sums on deposit with such depositaries, sign
all checks or other writings in connection therewith, sign, execute, acknowledge
and deliver in the name of the Trustees all authorized deeds, mortgages, bonds,
contracts, leases and promissory notes and drafts, or other writings evidencing
indebtedness of the Trustees, except in cases where the signing and execution
thereof shall have been expressly delegated by the Trustees to some other
Trustee, officer, agent or representative of the Trust.
4. The Secretary shall attend all meetings of the Trustees and of
the shareholders, shall give notice of all such meetings as required by the
provisions hereof, and shall keep the minutes of all such meetings; and in his
absence from any meeting a Temporary Secretary shall be chosen by the meeting to
act in his place.
ARTICLE VIII
SHARES AND SHAREHOLDERS
-----------------------
1. The beneficial interest in the trust estate shall be in the
holders from time to time of transferable shares, and shall consist of One
Thousand (1,000) common shares, each having a par value of One Dollar ($1.00).
2. This Declaration may be amended from time to time in the manner
provided in Article XIII to authorize shares in addition to those originally
authorized. All such additional shares may be of any class or series of
preferred or common shares, with or without par value, and ranking pari passu
with any class or series of shares previously issued, or having, as compared
with any class or series of shares previously issued, any preferences,
conversion or other special privileges or advantages, or any deferred or
restricted rights whatsoever.
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3. Authorized shares of the Trust may be issued from time to time in
such amounts as the Trustees may determine, either for cash, services,
securities, property or other value, or by way of stock dividend or in exchange
for other shares of this Trust at the time outstanding, as full-paid or
part-paid shares, and at such price and upon such terms as to valuation of
services, securities, property or other value or other shares, or otherwise, as
the Trustees may in their absolute discretion see fit and irrespective of the
par value thereof, if any. No holder of shares of any class and no holder of
other securities of this Trust shall, as such, have any preemptive or
preferential right of subscription to or purchase of any securities of this
Trust, except that additional shares authorized by amendment of the Declaration
of Trust shall be offered to existing shareholders unless otherwise stated in
such amendment. The Trustees may determine what part, if any, of the
consideration received upon the issuance of any shares shall constitute paid-in
surplus and the remainder (or the whole of such consideration, if the same shall
be any more than the par value, if any, of such shares or if no such
determination be made by the Trustee) shall constitute capital; and, in the case
of the issue of stock as a stock dividend, the Trustees may likewise determine
the amount to be transferred from surplus to capital account in respect of such
shares.
4. The Trustees may from time to time increase, decrease or adjust
the capital account of the Trust. Unless otherwise determined by the Trustees no
change in the share capital or capital account of the Trust shall give rise to
any right on the part of any shareholder to receive a distribution of any assets
of the Trust.
5. Shares may, in the discretion of the Trustees, be acquired by
the Trust either out of surplus or out of capital, and shares so acquired shall
be either canceled or held in the treasury as an asset of the Trust, and may
subsequently be sold by the Trustees from time to time, as they may in their
discretion determine; provided however that, shares so held in the treasury
shall not be entitled to dividends or voting rights, and shall not be deemed to
be outstanding for any purpose whatsoever, and provided further that, the
redemption and cancellation of any shares by the Trustees shall not reduce the
number of authorized shares of the Trust.
6. Every shareholder shall be entitled to receive a certificate
specifying the number of shares held by him, such certificates to be in such
form as the Trustees shall determine and to be signed by the President and the
Treasurer of the Trust. In the case of the loss, mutilation or destruction of a
share certificate, the Trustees may, upon submission to them of satisfactory
evidence of such fact, issue a new one in its stead, and may, as a condition
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of such issuance, require a bond of indemnity satisfactory to them.
7. A register shall be kept under the direction of the Trustees
which shall contain the names of the shareholders, their addresses as supplied
by them, the number of shares held by them respectively, and a record of all
transfers hereof. The person in whose name shares stand in said register shall
be treated as the absolute owner thereof for all purposes hereof; and until the
existing certificate is surrendered and a transfer made in accordance with the
provisions hereof is recorded on said register, the Trustees shall not be
affected by any notice, actual or constructive, of any transfer or of any right
of any other person in such shares whatsoever.
8. Except with respect to a transfer by operation of law, as
hereinafter in this paragraph provided for, every transfer of shares shall be in
writing under the hand of the transferor or his agent thereunder duly authorized
in writing and upon delivery thereof to the Trustees, accompanied by the
existing certificate for such shares, together with such evidence of the
genuineness of such transfer, authorization and other matters as may be
reasonably required by the Trustees. Every such transfer shall be recorded in
the register and thereupon a new certificate for the shares 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 residue thereof shall
be issued to the transferor. If any person shall become entitled to any shares
in consequence of the death, bankruptcy or insolvency of any shareholder or
otherwise by operation of law, then upon production of such evidence thereof as
may be required by the Trustees, and upon delivery of the existing certificate
to the Trustees, the transfer to such person shall be recorded in the register
and such person shall receive a new certificate for such shares.
9. The shares of the Trust shall constitute personal property
entitling the shareholders and transferees and other persons becoming entitled
to shares to such rights against the Trustees and the trust estate as are herein
specifically set forth, and such rights shall at all times be subject to all of
the terms and provisions of this Declaration of Trust; and no shareholder shall
have any voice in the management or control of the property, affairs or business
of the Trust. The shareholders shall not be liable for any action of the
Trustees hereunder, and the Trustees shall have no power to obligate or bind the
shareholders personally. No shareholder shall be liable in any event except for
payments, if any, due upon shares of this Trust held by such shareholder, and
shareholders who, contrary to the provisions hereof, shall be held to any per-
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sonal liability, shall be entitled pro rata to indemnity from the trust
estate.
10. Upon the death of any shareholder all shares held by him shall
pass as part of his personal estate. The death, insolvency or incapacity of one
or more of the shareholders, or any transfer of shares, shall not operate to
terminate this Trust or affect its continuity in any way, nor shall it entitle
any person to a dissolution of the Trust, to a partition of the trust estate or
to any accounting.
11. No future, limited or contingent interest shall be recognized
other than that of the trustee of an express trust.
12. Each share shall be entitled to one vote, and the shareholders
may vote by proxy. The legal representative of any shareholder may vote the
share of such shareholder upon submission to the Trustees of evidence
satisfactory to them of the authority of such legal representative to act.
ARTICLE IX
MEETINGS
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1. The annual meeting of the shareholders shall be held on the
second Thursday in May in each year, if not a legal holiday, and if a legal
holiday, then on the first day following which is not a legal holiday, at the
hour specified in the notice thereof sent in the manner hereinafter provided. In
case the annual meeting for any year shall for any reason not be duly called or
held, the Trustees or the President shall cause a special meeting to be held as
soon as may be thereafter, in lieu of and for the purpose of such annual
meeting, and all proceedings at such special meeting shall have the same force
and effect as if taken at the regular annual meeting. At such annual meeting,
Trustees shall be elected for the ensuing year, and the annual financial report
of the Trustees shall be received, and such other business may be transacted as
may be specified by the Trustees in the notice of the call thereof. Special
meetings of shareholders shall be held whenever ordered by the Trustees or the
President, or whenever requested by the holders of one-tenth (1/10) in interest
of all the shares outstanding and entitled to vote.
2. A written or printed notice of each meeting of the shareholders,
whether annual or special, specifying the time, place and purposes thereof,
shall be given by the Secretary, by mailing such notice, postage prepaid, to all
shareholders entitled to vote thereat, at their addresses as shown in the
register of the Trust, at least seven (7) days
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before such meeting, but no notice of the time, place or purposes of any regular
or special meeting of the shareholders shall be required if all the shareholders
entitled to vote are present thereat, and no notice need to be given to any
shareholder who himself, or by his attorney duly authorized by a writing which
is filed with the records of the meeting, waives such notice either before or
after such meeting.
3. A majority of the shares issued and outstanding and having the
right to vote shall constitute a quorum for the transaction of business, but
less than such quorum may adjourn the meeting from time to time and the meeting
may be held as adjourned without further notice. When a quorum is present at any
meeting, all matters properly brought before the meeting shall, except as herein
otherwise expressly provided, be decided by a majority vote. For the purpose of
determining the shareholders who are entitled to vote or act at any meeting or
any adjourned session thereof, the Trustees may from time to time close the
transfer books of the Trust for such period, not exceeding twenty (20) days
prior to such meeting, as the Trustees may determine.
4. An annual meeting of the Trustees shall be held as soon as
practicable following the annual meeting of the shareholders. The Trustees may
prescribe such rules in regard to all regular or special meetings as they may
deem necessary, and may act with or without a meeting. A meeting of the Trustees
may be held at any time and at any place when called by the President, Secretary
or by two or more Trustees. No notice of the said annual meeting shall be
required, but notice of each other meeting shall be given either by the
Secretary or by the person or persons by whom such meeting is called by giving
to each of the Trustees three (3) days notice of such meeting mailed, postage
prepaid, to their usual addresses as contained on the books of the Trust,
provided however that, it shall not be necessary to give notice of any such
meetings as aforesaid to any Trustee who is present at the meeting or who either
before or after the meeting waives such notice in writing.
ARTICLE X
DIVIDENDS
---------
The Trustees in their discretion may from time to time declare
dividends payable at any date fixed by them out of the earnings or surplus
(whether paid-in or otherwise) of the trust estate, in cash or in property,
including, without limiting the generality of the foregoing, securities of this
Trust, and for that purpose may authorize issuance of certificates and scrip,
and may capitalize all or any part of the surplus, and may determine the amount
of money per share so capitalized; but no shareholder shall have any right to
any
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dividend, whether in cash, property or securities of the Trust, except when and
as such dividends shall be paid pursuant to such declaration; and no shareholder
or Trustee shall be liable personally for any such dividend, and every
shareholder entitled thereto shall look only to the trust estate for the payment
of any such dividend. In the absence of fraud, the determination of the Trustees
as to the advisability of paying any dividend, as to the net profits, earnings
and surplus of the Trust, and as to any evaluation of property, shall be final
and conclusive.
ARTICLE XI
RIGHTS OF THIRD PERSONS
-----------------------
1. Every act or thing done or omitted, and every power exercised or
obligation incurred by the Trustees or any of them, in the administration of the
Trust or in connection with any business, property or concerns of the Trust and
the trust estate, whether ostensibly in their own names or in their capacity as
Trustees hereunder, shall be done, omitted, exercised or incurred by them as
Trustees and not as individuals; and every person contracting or dealing with
the Trustees, or any agent or representative of the Trustees acting within the
scope of his authority, or any person having any claim against the Trustees,
their authorized agents and representatives, whether founded in contract or
tort, shall look only to the trust estate for the payment or satisfaction of the
same; and no shareholder or Trustee, and no agent or representative of the
Trustees acting within the scope of his authority, shall ever be personally
liable for or on account of any contract, debt, tort, claim, damage, judgment or
decree arising out of or connected with the administration or preservation of
the trust estate or the conduct of the business of the Trust. A stipulation or
notice to this effect shall be inserted in every contract, order or other
instrument signed by the Trustees or their duly authorized agent and
representatives, but the omission thereof shall not constitute a waiver of the
foregoing provisions and shall not render the Trustees, their authorized agents
or representatives, or any shareholder, personally liable.
2. Any act or thing done by the Trustees, or by the duly authorized
agents or representatives of the Trustees, shall, as to all persons dealing with
such Trustees or such duly authorized agents and representatives of the
Trustees, be conclusively deemed to be within the purposes of this Declaration
of Trust, and within the powers of the Trustees. No person dealing with the
Trustees or with any of them or with any duly authorized agent or representative
of the Trustees, shall be bound to see the application of any funds or property
passing into their hands or control.
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3. Any certificate signed by the President, Treasurer or Secretary,
or by any two Trustees, setting forth as facts any matters affecting the trust
estate or the powers and authority of the Trustees under this Declaration or
with respect to any action taken by the Trustees or the shareholders, including
statements as to who are the Trustees or the shareholders, shall be conclusive
evidence as to the existence of the alleged facts, powers, authority or action
in favor of all persons acting in reliance thereon.
ARTICLE XII
DURATION AND TERMINATION
------------------------
1. Unless sooner terminated as hereinafter provided, the Trust
hereby created shall continue for a period of twenty (20) years from and after
the death of the last survivor of the three (3) original Trustees herein
specifically named, and at the expiration of the period of time so limited the
said Trust shall terminate. Neither the death, removal, resignation nor
incapacity of any or all of the Trustees shall cause a termination of the Trust.
2. The Trustees may terminate and dissolve this Trust at any time,
but only with the consent of the owners of at least two-thirds (2/3rds) of the
shares, or their proxies, voting at a meeting called for that purpose, pursuant
to notice given as hereinabove provided and specifying the purpose of the
meeting.
3. Upon termination of the Trust for any cause, the Trustees shall
liquidate the trust estate, wind up its affairs and dispose of its property and
assets in such manner as they deem expedient, and after discharging all the
legal obligations of the Trust shall distribute the proceeds among the
shareholders in proportion to their respective interests, and for these purposes
the Trustees shall continue to act hereunder until such duties have been fully
performed. Upon such termination the Trustees may, in their discretion,
distribute all or any part of the trust estate in kind pro rata to the
shareholders if all of the shareholders consent thereto. In the event that the
Trustees shall distribute any portion of the trust estate in kind, as aforesaid,
the values determined by the Trustees in good faith and for the purposes of
allocating such distribution among the respective shareholders shall be
conclusive and binding upon all persons.
16
ARTICLE XIII
AMENDMENTS
----------
The Trustees may alter, amend or add to this Declaration, and they
may convey the trust estate to a new or other Trustee or Trustees or to a
corporation, being first indemnified for any outstanding obligations or
liabilities; except however that the Trustees shall not have the power to amend
this Declaration so as to affect any right or liability of the shareholders
except with the consent and approval of the owners of at least two-thirds
(2/3rds) of the shares, or their proxies, voting at a meeting called for that
purpose pursuant to notice given as hereinabove provided and specifying the
purpose of the meeting and nature of the proposed amendment.
ARTICLE XIV
GENERAL PROVISIONS
------------------
1. The interest of the shareholders in the trust estate shall at all
times be considered personal property, and both the real estate and personal
property comprising the trust estate shall constitute a single fund.
2. In the event this Declaration of Trust shall be terminated,
altered or amended, or in the event of the resignation of a Trustee or the
election of a new Trustee not already acting, a certificate certifying such
fact, executed in accordance with the provisions of paragraph 3 of Article XI
hereof and duly acknowledged, shall within thirty (30) days from the effective
date of such termination, alteration or amendment of this Declaration, or of
such resignation or election of a Trustee, be recorded or registered in any
Registry of Deeds or Registry District of the Land Court where this Trust is
recorded or registered, provided however that, as to any person dealing with the
Trustees or the trust estate, it shall be conclusively deemed that the Trustees
as they appear from time to time on the records of any Registry of Deeds or
Registry District of the Land Court where this Declaration of Trust is recorded
or registered are the duly qualified and acting Trustees hereunder, and no such
person shall be bound by any notice, actual or constructive, of any change in
the office of Trustees not appearing of record as aforesaid.
3. Except when the context otherwise requires, any expression used
herein in the conjunctive or in the disjunctive, any expression in the singular
or the plural shall include both the singular and the plural, and any expression
in the masculine and the feminine shall include both the masculine and feminine
and, where appropriate, the neuter.
17
4. The headings of the Articles of this Declaration are inserted
merely for convenience of reference and are not to be taken as any part of this
Declaration or to control or affect the meaning, construction or effect of the
same.
5. This instrument is executed by the Trustees and delivered in the
Commonwealth of Massachusetts, and the right of all parties and the construction
and effect of every provision hereof shall be subject to and construed according
to the laws of said Commonwealth.
6. If any part or parts of this Declaration shall be held invalid,
such invalidity shall not affect the remainder of this Declaration which shall
in such case read as if such invalid part or parts did not exist.
IN WITNESS WHEREOF, the said FAYE A. FLORENCE, LEONARD FLORENCE and
E. MERLE RANDOLPH executed this Declaration of Trust, as of the date first above
written.
/s/ Faye A. Florence
-------------------------------
FAYE A. FLORENCE
/s/ Leonard Florence
-------------------------------
LEONARD FLORENCE
/s/ E. M. Randolph
-------------------------------
E. MERLE RANDOLPH
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared FAYE
A. FLORENCE, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that she executed the
same as her free act.
/s/ Kathleen M. Barbeau
--------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared
LEONARD FLORENCE, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that he executed the same
as his free act.
/s/ Kathleen M. Barbeau
--------------------------
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On this 10th day of April, 1995 before me personally appeared E.
MERLE RANDLOPH, to me known to be the person described in and who executed the
foregoing Declaration of Trust, and acknowledged to me that he executed the same
as his free act.
/s/ Kathleen M. Barbeau
--------------------------