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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 7, 1999
Entertainment Properties Trust
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(Exact name of registrant as specified in its charter)
Maryland 1-13561 43-1790877
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1200 Main Street, Suite 3250, Kansas City, Missouri 64105
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(Address of principal executive offices)
Registrant's telephone number, including area code (816) 472-1700
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This Report is being filed solely for the purpose of filing Exhibits
1.2, 3.2, 3.3 and 8.2 to the registrant's Registration Statement on Form S-3,
Registration No. 333-78727.
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ITEM 7(C) EXHIBITS
Exhibit No. Description
- ----------- -----------
1.2 Underwriting Agreement dated June 4, 1999 between CIBC World
Markets Corp. and the registrant for 1,200,000 common shares of
beneficial interest (1,380,000 common shares if the
Underwriter's over- allotment is exercised)
3.2 Amended and Restated Declaration of Trust of the Company
3.3 Bylaws of the Company
8.2 Tax Opinion of Armstrong Teasdale LLP
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENTERTAINMENT PROPERTIES TRUST
Date: June 7, 1999 /s/ David M. Brain
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David M. Brain, Chief Operating Officer and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.2 Underwriting Agreement dated June 4, 1999 between CIBC World
Markets Corp. and the registrant for 1,200,000 common shares of
beneficial interest (1,380,000 common shares if the
Underwriter's over- allotment is exercised)
3.2 Amended and Restated Declaration of Trust of the Company
3.3 Bylaws of the Company
8.2 Tax Opinion of Armstrong Teasdale LLP
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EXHIBIT 1.2
1,200,000 Shares
ENTERTAINMENT PROPERTIES TRUST
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
June 4, 1999
CIBC World Markets Corp.
One World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Entertainment Properties Trust, a Maryland real estate
investment trust (the "Company"), proposes, subject to the terms and conditions
contained herein, to sell to you (the "Underwriter"), an aggregate of 1,200,000
shares (the "Firm Shares") of the Company's common shares of beneficial
interest, $.01 par value (the "Common Shares"). In addition, the Company
proposes to grant to the Underwriter an option to purchase up to an additional
180,000 Common Shares (the "Option Shares") from it for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and
agreements contained in, and subject to the terms and conditions of, this
Agreement:
(a) The Company agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at a price of
$17.58 per share (the "Initial Price"), 1,200,000 Firm Shares.
(b) The Company grants to the Underwriter an option to
purchase all or any part of the Option Shares at the Initial Price.
Such option may be exercised only to cover any over-allotment in
the sale of the Firm Shares by the Underwriter and may be exercised
in whole or in part at any time on or before 12:00 noon, New York
City time, on the business day before the Firm Shares Closing Date
(as defined below), and from time to time thereafter within 30 days
after the date of this Agreement, in each case upon written,
facsimile or telegraphic notice, or verbal or telephonic notice
confirmed by written, facsimile or telegraphic notice, by the
Underwriter to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date or at
least two business days before the Option Shares Closing Date (as
defined below), as the case may
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be, setting forth the number of Option Shares to be purchased and
the time and date (if other than the Firm Shares Closing Date) of
such purchase.
2. Delivery and Payment. Delivery by the Company of the
Firm Shares to the Underwriter for its account, and payment of the purchase
price in immediately available funds by wire transfer to the Company at the bank
account designated in writing by the Company for the Shares purchased from the
Company, against delivery of the respective certificates therefor to the
Underwriter, shall take place at the offices of CIBC World Markets Corp., at
CIBC World Markets Tower, World Financial Center, New York, New York 10281, at
10:00 a.m., New York City time, on the fourth business day following the date of
this Agreement, or at such time on such other date, not later than 10 business
days after the date of this Agreement, as shall be agreed upon by the Company
and the Underwriter (such time and date of delivery and payment are called the
"Firm Shares Closing Date").
In the event the option with respect to the Option Shares
is exercised in whole or in part on one or more occasions, delivery by the
Company of the Option Shares to the Underwriter for its account and payment of
the purchase price thereof in immediately available funds by wire transfer to
the Company at the bank account designated in writing by the Company shall take
place at the offices of CIBC World Markets Corp. specified above at the time and
on the date (which may be the same date as, but in no event shall be earlier
than, the Firm Shares Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of delivery and payment are called the "Option
Shares Closing Date"). The Firm Shares Closing Date and the Option Shares
Closing Date are called, individually, a "Closing Date" and, together, the
"Closing Dates."
Certificates evidencing the Shares shall be registered in
such names and shall be in such denominations as the Underwriter shall request
at least two full business days before the Firm Shares Closing Date or, in the
case of Option Shares, on the day of notice of exercise of the option as
described in Section l(b) and shall be made available to the Underwriter for
checking and packaging, at such place as is designated by the Underwriter, on
the full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. Representations and Warranties of the Company. The
Company hereby represents and warrants to the Underwriter as follows:
(a) A registration statement on Form S-3 (File No.
333-78727), with respect to the Common Shares, including a
prospectus, have been carefully prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the
"Securities Rules") of the Securities and Exchange Commission (the
"Commission") thereunder, and have been filed with the Commission
and declared effective. Such registration statement and prospectus
may have been amended or supplemented prior to the date of this
Underwriting Agreement; any such amendment of such registration
statement or supplement was so prepared and filed, and any such
amendment filed after the effective date of such registration
statement (the "Effective Date") has been declared effective. No
stop order suspending the effectiveness of the registration
statement has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of
the offering, sale and plan of distribution of the Shares (the
"Offering") and additional information concerning the Company and
its business has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the Securities Rules on or before the
second business day after the date hereof (or such earlier time as
may be required by the Securities Rules). Copies of such
registration statement and prospectus, any such amendments or
supplements and all
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documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement (including
one fully executed copy of the registration statement and of each
amendment thereto for the Underwriter and its counsel) have been
delivered to the Underwriter and its counsel. The registration
statement, as it may have heretofore been amended, is referred to
herein as the "Registration Statement," and the final form of
prospectus included in the Registration Statement, as supplemented
by the Prospectus Supplement, is referred to herein as the
"Prospectus." Any reference herein to the Registration Statement,
the Prospectus or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration
Statement and Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval
System (EDGAR), and such copy shall be identical in content to any
Prospectus delivered to you for use in connection with the offering
of the Shares.
(b) Each part of the Registration Statement, when such
part became or becomes effective and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with
the Commission and at the Firm Shares Closing Date and, if later,
at an Option Shares Closing Date, conformed or will conform in all
material respects with the requirements of the Securities Act and
the Securities Rules; each part of the Registration Statement, when
such part became or becomes effective, or when such part was filed
with the Commission, did not or will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus and any amendment or
supplement thereto, on the date thereof and at the Firm Shares
Closing Date and, if later, at an Option Shares Closing Date, did
not or will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing shall not apply to
statements in, or omissions from, any such document in reliance
upon, and in conformity with, written information concerning the
Underwriter that was furnished to the Company by the Underwriter
specifically for use in the preparation thereof.
(c) The documents incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, when they became or become effective under the Securities
Act or were or are filed with the Commission under the Securities
Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, conformed or will conform in
all material respects with the requirements of the Securities Act,
the Securities Rules, the Exchange Act and/or the rules and
regulations of the Commission thereunder (the "Exchange Rules"), as
applicable.
(d) The financial statements of the Company together with
the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company as
of the dates indicated and the results of operations, changes in
financial position, shareholders' equity and cash flows for the
periods therein specified, in conformity with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise stated therein). The summary and/or
selected financial and statistical data included or incorporated by
reference in the Registration
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Statement and the Prospectus present fairly the information shown
therein and, to the extent based upon or derived from the financial
statements, have been compiled on a basis consistent with the
financial statements presented therein. In addition, any pro forma
financial statements of the Company, and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have
been properly compiled on the basis described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. Furthermore,
all financial statements required by Rule 3-05 or Rule 3-14 of
Regulation S-X ("Rule 3-05" and "Rule 3-14", respectively), if any,
have been included or incorporated by reference in the Registration
Statement and the Prospectus and any such financial statements are
in conformity with the requirements of Rule 3-05 and Rule 3-14. No
other financial statements are required to be set forth or
incorporated by reference in the Registration Statement or the
Prospectus under the Securities Act or the Securities Rules.
(e) Ernst & Young LLP, whose reports are incorporated by
reference in the Registration Statement, are and, during the
periods covered by their reports, were independent public
accountants as required by the Securities Act and the Securities
Rules.
(f) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under
the laws of the State of Maryland. Other than EPT DownReit, Inc., a
Missouri corporation, EPT DownReit II, Inc., a Missouri
corporation, and EPT DownReit North Carolina, Inc. (collectively,
the "Subsidiaries"), the Company has no subsidiary or subsidiaries
and does not control, directly or indirectly, any corporation,
partnership, joint venture, association or other business
organization. Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Missouri. Each of the Company and the Subsidiaries
is duly qualified and in good standing as a foreign corporation or
other entity in each jurisdiction in which the character or
location of its assets or properties (owned, leased or licensed) or
the nature of its business makes such qualification necessary
(including every jurisdiction in which the Company or its
Subsidiaries, as the case may be, owns or leases property), except
for such jurisdictions where the failure to so qualify would not
have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial
or otherwise) of the Company (a "Material Adverse Effect"). Except
as disclosed or incorporated by references in the Registration
Statement and the Prospectus, neither the Company nor any of its
Subsidiaries owns, leases or licenses any asset or property or
conducts any business outside the United States of America. Each of
the Company and its Subsidiaries has all requisite corporate power
and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from
all governmental or regulatory bodies or any other person or
entity, to own, lease, license and operate its assets and
properties and conduct its business as now being conducted and as
described or incorporated by reference in the Registration
Statement and the Prospectus; except for such authorizations,
approvals, consents, orders, licenses, certificates and permits the
absence of which would not have a Material Adverse Effect; and no
such authorization, approval, consent, order, license, certificate
or permit contains a materially burdensome restriction other than
as disclosed or incorporated by reference in the Registration
Statement and the Prospectus.
(g) Each of the Company and its Subsidiaries owns or
possesses adequate and enforceable rights to use all trademarks,
trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how and other similar rights
(collectively, the
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"Intangibles") necessary for the conduct of its business as now
being conducted and as described or incorporated by reference in
the Registration Statement and the Prospectus. Neither the Company
nor its Subsidiaries has infringed, is infringing, or has received
any notice on infringement of, any Intangible of any other person,
that will have a Material Adverse Effect and the Company does not
know of any basis therefor.
(h) Each of the Company and its Subsidiaries has good
title to each of the items of personal property which are reflected
in the financial statements referred to in Section 3(d) or are
referred to in the Registration Statement and the Prospectus or any
document incorporated by reference therein as being owned by the
Company and valid and enforceable leasehold interests in each of
the items of real and personal property which are referred to in
the Registration Statement and the Prospectus or any document
incorporated by reference therein as being leased by the Company,
in each case free and clear of all liens, encumbrances, claims,
security interests and defects, other than those described in the
Registration Statement and the Prospectus and those which do not
and will not have a Material Adverse Effect.
(i) Except with respect to certain rights of first refusal
and rights of first offer held by AMC Entertainment, Inc. and
subsidiaries on properties operated by them, the Company has good
and marketable title to, or leasehold interests in, all properties
and assets as described in the Registration Statement and the
Prospectus or any document incorporated by reference therein, owned
by the Company, free and clear of all liens, charges, encumbrances
or restrictions, except such as are described in the Registration
Statement and the Prospectus or any document incorporated by
reference therein, or are not material in relation to the business
of the Company; no lessee under any of the leases pursuant to which
the Company leases its properties has an option or right of first
refusal to purchase the premises demised under such lease; the use
and occupancy of each of the properties owned by the Company
complies in all material respects with all applicable codes and
zoning laws and regulations; the Company has no knowledge of any
pending or threatened condemnation or zoning change that will in
any material manner affect the size of, use of, improvements on,
construction on, or access to any of the properties owned by the
Company, which would have a material adverse effect upon the
proposed use of such property as an entertainment-related property
or megaplex movie theatre complex; and the Company has no knowledge
of any pending or threatened proceeding or action that will in any
material respect affect the size of, use of, improvement of,
construction on, or access to any of the properties owned by the
Company.
(j) Title insurance in favor of the mortgagee and the
Company is maintained with respect to each of the properties owned
by the Company in an amount at least equal to the greater of (i)
the cost of acquisition of such property or (ii) the cost of
construction of the improvements located on such property (measured
at the time of such construction).
(k) The mortgages and deeds of trust encumbering the
properties and assets described or incorporated by reference in the
Registration Statement and the Prospectus are not convertible into
Common Shares or other equity interest in the Company nor does the
Company hold a participating interest therein.
(l) In the event of the purchase by the Company of the
parcels of property to be purchased by it pursuant to any purchase
agreements, contracts and letters of intent referred to in the
Registration Statement and Prospectus relating to sites for
additional megaplex theatre complexes (the "Property Purchase
Agreements"), the Company will receive good and marketable title to
all
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such parcels of property (the "Proposed Acquisitions"), in each
case free and clear of all liens, charges, encumbrances, claims,
security interests, restrictions and defects, other than those that
would not have a Material Adverse Effect. To the best knowledge of
the Company: (i) the intended use and occupancy of each of the
Proposed Acquisitions complies with all applicable codes and zoning
laws and regulations, except for such failures to comply which
would not individually or in the aggregate have a material adverse
effect on the ability of the Company to develop, construct and own
a megaplex theatre complex on such parcel of property and lease it
to the owner of such megaplex theatre complex; and (ii) there is no
pending or threatened condemnation, zoning change, environmental or
other proceeding or action that will in any material respect affect
the size of, use of, improvements on, construction on, or access to
the Proposed Acquisitions.
(m) There is no litigation or governmental or other
proceeding or investigation before any court or before or by any
public body or board pending or, to the Company's best knowledge,
threatened (and the Company does not know of any basis therefor)
against, or involving the assets, properties or businesses of the
Company which would materially adversely affect the value or the
operation of any such assets or properties or the business, results
of operations, prospects or condition (financial or otherwise) of
the Company.
(n) Except as disclosed in the Registration Statement or
the Prospectus or any document incorporated by reference therein,
(i) there is not present on any of the properties owned by the
Company or the Proposed Acquisitions any hazardous substances,
hazardous materials, toxic substances, asbestos or waste materials
(collectively, "Hazardous Materials"), (ii) there has not occurred
or is not presently occurring from any of such properties any
unlawful spills, releases, discharges or disposal of Hazardous
Materials, and (iii) all such properties are in compliance with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials, which
failure would have a Material Adverse Effect.
(o) The Company will obtain and maintain title insurance
in favor of the Company on each of the Proposed Acquisitions, when
and if consummated, not later than the time that financing for the
construction of a megaplex movie theatre complex thereon is
obtained, in an amount at least equal to the cost of the
acquisition of such property.
(p) Property and casualty insurance in favor of the
Company is maintained with respect to each of the properties owned
by the Company, and will be obtained and maintained with respect to
each of the Proposed Acquisitions, when and if consummated, in an
amount and on such terms as are reasonable and customary for
businesses of this type.
(q) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, (i) there has not been any
material adverse change in the assets or properties, business,
results of operations, prospects or condition (financial or
otherwise) of the Company or its Subsidiaries, whether or not
arising from transactions in the ordinary course of business; (ii)
neither the Company nor its Subsidiaries has sustained any material
loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or any court or legislative or other governmental
action, order or decree; and (iii) since the date of the latest
balance sheet, included or incorporated by reference in the
Registration Statement and the Prospectus, except as reflected
therein, neither the Company nor
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its Subsidiaries has undertaken any liability or obligation, direct
or contingent, except such liabilities or obligations undertaken in
the ordinary course of business.
(r) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. Each
mortgage, line of credit agreement, loan agreement, guarantee,
employment contract, stock option agreement, leasing agreement,
purchase agreement and all other agreements of the Company
described in the Registration Statement or the Prospectus or
incorporated by reference therein or listed as exhibits to the
Registration Statement are in full force and effect and are valid
and enforceable by and against the Company in accordance with their
terms, assuming the due authorization, execution and delivery
thereof by each of the other parties thereto. Neither the Company
nor its Subsidiaries, nor to the best of the Company's knowledge,
any other party is in default in the observance or performance of
any term or obligation to be performed by it under any such
agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, which default or
event would have a Material Adverse Effect. No default exists, and
no event has occurred which with notice or lapse of time or both
would constitute a default, in the due performance and observance
of any term, covenant or condition, by the Company or its
Subsidiaries of any other agreement or instrument to which the
Company is a party or by which it or its properties or business may
be bound or affected, which default or event would have a Material
Adverse Effect.
(s) Neither the Company nor its Subsidiaries is in
violation of any term or provision of its respective charter or
by-laws or of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such
violation would have a Material Adverse Effect.
(t) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under,
or require any consent or waiver under, or result in the execution
or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company pursuant to the terms of, any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or its Subsidiaries is a party or by which any
of them is bound, or any other respective properties or businesses
are bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation applicable to the Company or its
Subsidiaries or violate any provision of the charter or by-laws of
the Company or its Subsidiaries, as applicable, except for such
consents or waivers which have already been obtained and are in
full force and effect.
(u) The Company has authorized, issued and outstanding
capital stock as set forth in the balance sheet of the Company
included in its Form 10-Q for the quarter ended March 31, 1999. All
of the outstanding Common Shares have been duly authorized and
validly issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other similar
right. The Shares, when issued and sold pursuant to this Agreement,
will be duly authorized and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any share of
beneficial interest of the Company or
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any security convertible into or exercisable or exchangeable for,
any such share. The Common Shares and the Shares conform in all
material respects to all statements relating thereto contained in
the Registration Statement and the Prospectus.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described or referred to therein, the Company
has not (i) issued any securities or incurred any liability or
obligation, direct or contingent, except such liabilities or
obligations incurred in the ordinary course of business including,
without limitation, debt financing to acquire properties, (ii)
entered into any transaction not in the ordinary course of business
or (iii) other than the Company's regular dividend payment for the
second quarter of 1999, declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock.
(w) No holder of any security of the Company has the right
which has not been waived to have any security owned by such holder
included in the Registration Statement or any right to demand
registration of any security owned by such holder during the period
ending 45 days after the date of this Agreement.
(x) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the
Shares by the Company. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes
and will constitute the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms. Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution
and delivery by the Company of this Agreement and the issuance and
sale of the Shares by the Company (except such as may be required
under the Securities Act or such additional steps as may be
required by the National Association of Securities Dealers, Inc.
(the "NASD") or by the New York Stock Exchange, Inc. ("NYSE"), if
any) has been obtained or made and is in full force and effect. The
Shares will be listed on the NYSE on or prior to the Firm Share
Closing Date.
(y) Neither the Company nor its Subsidiaries is involved
in any labor dispute nor, to the knowledge of the Company, is any
such dispute threatened, which dispute would have a Material
Adverse Effect.
(z) The Company and its Subsidiaries are conducting their
respective businesses in compliance with all applicable laws, rules
and regulations of the jurisdictions in which they are conducting
business, including, without limitation, the Americans with
Disabilities Act of 1990 and all applicable local, state and
federal employment, truth-in-advertising, franchising and
immigration laws and regulations, except where the failure to be so
in compliance would not have a Material Adverse Effect.
(aa) No transaction has occurred between or among the
Company and any of its officers or trustees or any affiliate or
affiliates of any such officer or trustee that is required to be
described in and is not described in or incorporated by reference
in the Registration Statement and the Prospectus.
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(bb) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Common Shares to facilitate the
sale or resale of any of the Shares.
(cc) The Company and its Subsidiaries have filed all
federal, state, local and foreign tax returns which are required to
be filed through the date hereof (and will file all such tax
returns when and as required to be filed after the date hereof), or
have received extensions thereof, and have paid all taxes shown on
such returns to be due on or prior to the date hereof (and will pay
all taxes shown on such returns to be due after the date hereof)
and all assessments received by it to the extent that the same are
material and have become due.
(dd) The execution, delivery and performance of each of
the Property Purchase Agreements (other than any letters of intent)
and the consummation of the transactions contemplated therein have
been duly authorized by all necessary action, and will not conflict
with or constitute a breach of, or a default under, or result in
the creation or imposition of any lien, charge or encumbrance under
any property or assets of the Company, nor will such action result
in a violation of the Company's charter, by-laws, or any applicable
law, administrative regulation or administrative or court decree.
(ee) The Company has met the qualification requirements
for a "real estate investment trust" during its taxable years
ending on or after December 31, 1997 and its proposed method of
operations will enable it to continue to meet the requirements for
qualification and taxation as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code"),
assuming no change in the applicable underlying law. The Company
does not know of any event which would cause or is likely to cause
the Company to fail to qualify as a "real estate investment trust"
at any time.
(ff) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(gg) The books, records and accounts of the Company and
its Subsidiaries accurately and fairly reflect, in reasonable
detail, the transactions in, and dispositions of, the assets of,
and the results of operations of, the Company and its Subsidiaries.
Each of the Company and its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting
principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(hh) The Company and its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the businesses in
which they are engaged or propose to engage after giving effect to
the transactions described in the Prospectus; and neither the
Company nor any Subsidiary of the Company has any reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at
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a cost that would not have a material adverse effect on the
business of the Company or its Subsidiaries. Neither the Company
nor any Subsidiary has been denied any insurance coverage which it
has sought or for which it has applied.
(ii) None of the Company, its Subsidiaries or any other
person associated with or acting on behalf of the Company or its
Subsidiaries including, without limitation, any trustee, director,
officer, agent or employee of the Company or its Subsidiaries has,
directly or indirectly, while acting on behalf of the Company or
its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds;
(iii) violated any provision of the Foreign Corrupt Practices Act
of 1977, as amended; or (iv) made any other unlawful payment.
4. Conditions of the Underwriter's Obligations. The
obligation of the Underwriter to purchase the Shares is subject to each of the
following terms and conditions:
(a) The Prospectus Supplement shall have been timely filed
with the Commission in accordance with Section 5(a) of this
Agreement.
(b) No order preventing or suspending the use of the
Prospectus shall have been or shall be in effect and no order
suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending
before or threatened by the Commission, and any requests for
additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of you
and your counsel.
(c) The representations and warranties of the Company
contained in this Agreement shall be true and correct when made and
on and as of each Closing Date as if made on such date and the
Company shall have performed all covenants and agreements and
satisfied all of the conditions contained in this Agreement
required to be performed or satisfied by it at or before such
Closing Date.
(d) The Underwriter shall have received on each Closing
Date a certificate, addressed to the Underwriter and dated such
Closing Date, of the chief executive officer or the chief financial
officer of the Company, to the effect that such person has
carefully examined the Registration Statement, the Prospectus and
this Agreement and that the representations and warranties of the
Company in this Agreement are true and correct on and as of such
Closing Date with the same effect as if made on such Closing Date
and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Underwriters shall have received at the time this
Agreement is executed and on each Closing Date, a letter or letters
signed by Ernst & Young LLP, addressed to the Underwriter and
dated, respectively, the date of this Agreement and each such
Closing Date, in form and substance satisfactory to the
Underwriter, as to their status as independent accountants within
the meaning of the Securities Act and the Securities Rules, the
information in or incorporated by reference in the Registration
Statement in response to Item 10 of Form S-3 under the Securities
Act and matters
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<PAGE> 11
relating to the financial statements and other financial and
statistical information included or incorporated by reference in
the Registration Statement and the Prospectus.
(f) The Underwriter shall have received on each Closing
Date from Armstrong Teasdale LLP, counsel for the Company, an
opinion, addressed to the Underwriter and dated such Closing Date,
and stating in effect that:
(i) The Company has been duly organized and is
validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland, and each
of the Subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws
of the State of Missouri. To the best of such counsel's
knowledge, the Company has no other subsidiaries and does
not control, directly or indirectly, any corporation,
partnership, joint venture, association or other business
organization. Each of the Company and its Subsidiaries is
duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or
location of its assets or properties (owned, leased or
licensed) or the nature of its businesses makes such
qualification necessary, except for such jurisdictions
where the failure to so qualify would not have a Material
Adverse Effect.
(ii) Each of the Company and its Subsidiaries has
all requisite corporate power and authority to own, lease
and license its assets and properties and conduct its
business as now being conducted and as described in the
Registration Statement, the Prospectus and the Prospectus
Supplement and with respect to the Company to enter into,
deliver and perform this Agreement and to issue and sell
the Shares.
(iii) The Company has authorized and issued
capital stock as set forth in the in the balance sheet of
the Company included in its Form 10-Q for the quarter
ended March 31, 1999; the certificates evidencing the
Shares are in due and proper legal form and have been duly
authorized for issuance by the Company; all of the
outstanding Common Shares of the Company have been duly
and validly authorized and issued and are fully paid and
nonassessable and none of them was issued in violation of
any preemptive or other similar right. The Shares when
issued and sold pursuant to this Agreement will be duly
and validly issued, outstanding, fully paid and
nonassessable and none of them will have been issued in
violation of any preemptive or other similar right. To the
best of such counsel's knowledge, except as disclosed in
the Registration Statement and the Prospectus, there are
no preemptive rights or any restriction upon the voting or
transfer of any securities of the Company pursuant to the
Company's charter or by-laws or other governing documents
or any other instrument to which the Company is a party or
by which it may be bound. To the best of such counsel's
knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any
share of beneficial interest of the Company or any
security convertible into, exercisable for, or
exchangeable for shares of beneficial interest of the
Company. The Common Shares and the Shares conform in all
material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus. The issued
and outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are
owned by the Company, free and clear, to the knowledge of
such counsel, of any liens, encumbrances, claims or
security interests.
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<PAGE> 12
(iv) All necessary corporate action has been duly
and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement and
the issuance and sale of the Shares. This Agreement has
been duly and validly authorized, executed and delivered
by the Company.
(v) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time,
or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or the Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of
trust, note or other agreement or instrument of which such
counsel is aware and to which the Company or the
Subsidiaries is a party or by which either the Company or
the Subsidiaries or any of their properties or businesses
is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation of which such
counsel is aware or violate any provision of the charter
or by-laws of the Company or the Subsidiaries.
(vi) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a
default, in the due performance and observance of any
term, covenant or condition by the Company of any
indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company is a party or
by which it or any of its assets or properties or
businesses may be bound or affected, where the
consequences of such default would have a Material Adverse
Effect.
(vii) To the best of such counsel's knowledge, the
Company and its Subsidiaries are not in violation of any
term or provision of their respective charters or by-laws
or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences
of such violation would have a Material Adverse Effect.
(viii) No consent, approval, authorization or
order of any court or governmental agency or regulatory
body is required for the execution, delivery or
performance of this Agreement by the Company or the
consummation of the transactions contemplated hereby or
thereby, except such as have been obtained under the
Securities Act and such as may be required under state
securities or "blue sky" laws in connection with the
purchase and distribution of the Shares by the
Underwriter.
(ix) To the best of such counsel's knowledge,
there is no litigation or governmental or other proceeding
or investigation, before any court or before or by any
public body or board pending or threatened against, or
involving the assets, properties or businesses of, the
Company which would have a Material Adverse Effect.
(x) The capital stock of the Company conforms in
all material respects to the description thereof contained
in the Prospectus Supplement under the caption
"Description
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<PAGE> 13
of Common Shares." The statements in the Prospectus
Supplement under the caption "Description of Common
Shares" insofar as such statements constitute a summary of
documents referred to therein or matters of law, are fair
summaries in all material respects and accurately present
the information called for with respect to such documents
and matters. Accurate copies of all contracts and other
documents required to be filed as exhibits to, or
described in, the Registration Statement have been so
filed with the Commission or are fairly described in the
Registration Statement, as the case may be.
(xi) The descriptions contained or incorporated by
reference in the Registration Statement and the Prospectus
of statutes, legal and governmental proceedings, contracts
and other documents are accurate, and insofar as such
statements constitute a summary of documents referred to
therein, matters of law or legal conclusions, are fair
summaries of the material provisions thereof and
accurately present the information required with respect
to such documents and matters. All statutes, legal or
governmental proceedings, and all agreements and other
documents required to be described in the Registration
Statement (or incorporated by reference therein) have been
so described. All agreements and other documents known to
such counsel to be required to be filed as exhibits to the
Registration Statement have been so filed or incorporated
by reference therein.
(xii) The Registration Statement, the Prospectus,
the Prospectus Supplement, each of the documents
incorporated by reference in the Registration Statement
and the Prospectus and each amendment or supplement
thereto (except for the financial statements and notes and
schedules and other financial and statistical information
included therein, as to which such counsel expresses no
opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Securities
Rules and the Exchange Act and the Exchange Rules, as the
case may be.
(xiii) The Registration Statement has become
effective under the Securities Act, and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are threatened or pending. The Shares have
been listed on the NYSE.
(xiv) The Company has met the qualification
requirements for a "real estate investment trust" during
its taxable years ending on or after December 31, 1997 and
its proposed method of operation will enable it to
continue to meet the requirements for qualification and
taxation as a "real estate investment trust" under the
Code, assuming no change in the applicable underlying law.
The discussion in the Prospectus under the caption
"Federal Income Tax Consequences" is accurate and
complete.
(xv) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended.
To the extent deemed advisable by such counsel, the
Underwriter may rely as to matters of fact on certificates of responsible
officers of the Company and public officials and on the opinions of other
counsel satisfactory to the Underwriter as to matters which are governed by laws
other than the laws of the States of New York, Maryland and Missouri and the
federal laws of the United States; provided that such counsel shall state that
in their opinion the Underwriter and such counsel are justified in relying on
such other opinions. Copies of such certificates and other opinions shall be
furnished to the Underwriter and counsel for the Underwriter.
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<PAGE> 14
In addition, such counsel shall state that such counsel
has participated in conferences with
officers and other representatives of the Company, representatives of the
Underwriter and representatives of the independent certified public accountants
of the Company, at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing opinion), on
the basis of the foregoing, no facts have come to the attention of such counsel
which lead such counsel to believe that the Registration Statement at the time
it became effective (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus (except with respect
to the financial statements, notes and schedules thereto and other financial
data, as to which such counsel need make no statement) on the date thereof and
on the applicable Closing Date contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(g) All proceedings taken in connection with the sale of
the Firm Shares and the Option Shares as herein contemplated shall
be reasonably satisfactory in form and substance to the
Underwriter, and the Underwriter shall have received from Rogers &
Wells LLP a favorable opinion, addressed to the Underwriter and
dated such Closing Date, with respect to the Shares, the
Registration Statement and the Prospectus, and such other related
matters, as the Underwriter may reasonably request, and the Company
shall have furnished to Rogers & Wells LLP such documents as they
may reasonably request for the purpose of enabling them to pass
upon such matters.
(h) If the Shares have been qualified for sale in Florida,
the Underwriter shall have received on each Closing Date
certificates, addressed to the Underwriter, and dated such Closing
Date, of an executive officer of the Company, to the effect that
the signer of such certificate has reviewed and understands the
provisions of Section 517.075 of the Florida Statutes, and
represents that the Company has complied, and at all times will
comply, with all provisions of Section 517.075 and further, that as
of such Closing Date, neither the Company nor any of its affiliates
does business with the government of Cuba or with any person or
affiliate located in Cuba.
(i) The Shares shall have been listed on the NYSE.
(j) The NASD shall have passed on the terms of the
underwriter compensation in connection with the offering of the
Shares.
(j) The Company shall have furnished or caused to be
furnished to the Underwriter such further certificates or documents
as the Underwriter shall have reasonably requested.
5. Covenants of the Company. The Company covenants and
agrees as follows:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 3(a) hereof (but only if the
Underwriter or its counsel has not reasonably objected thereto by
notice to the Company after having been furnished a copy a
reasonable time prior to filing) and will notify the Underwriter
promptly of such filing. During the period in which a Prospectus
relating to the Shares is required to be delivered under the
Securities Act or such date which is 90 days after the
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<PAGE> 15
Closing Date, whichever is later, the Company will notify the
Underwriter promptly of the time when any subsequent amendment to
the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed, of any request by the
Commission for any amendment or supplement to the Registration
Statement or Prospectus or for additional information; the Company
will prepare and file with the Commission, promptly upon the
request of the Underwriter, any amendments or supplements to the
Registration Statement or Prospectus that, in its or its counsel's
opinion, may be necessary or advisable in connection with the
distribution of the Shares; and the Company will file no amendment
or supplement to the Registration Statement or Prospectus (other
than any prospectus supplement relating to the offering of other
securities registered under the Registration Statement or any
document required to be filed under the Exchange Act that upon
filing is deemed to be incorporated by reference therein) to which
the Underwriter or its counsel shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time
prior to the filing.
(b) The Company will advise the Underwriter, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, of the suspension of
the qualification or registration of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose; and it will promptly use its
best efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such a stop order should be issued.
(c) The Company will comply with all requirements imposed
upon it by the Securities Act, the Securities Rules, the Exchange
Act and the Exchange Rules as from time to time in force, so far as
necessary to permit the continuance of sales of, or dealings in,
the Shares as contemplated by the provisions hereof and the
Prospectus. If during such period where a prospectus relating to
the Shares is required to be delivered under the Securities Act or
such date which is 90 days after the Firm Shares Closing Date,
whichever is later, any event occurs as a result of which, in the
opinion of your counsel, the Registration Statement contains an
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary
to amend or supplement the Registration Statement or Prospectus to
comply with the Securities Act, the Company will promptly notify
you and will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
(d) The Company shall make generally available to its
security holders and to the Underwriter as soon as practicable, but
not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during
which the Effective Date occurs (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earning statement
(which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Securities Rules.
(e) The Company shall furnish to the Underwriter and its
counsel, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof)
and all amendments thereof and, so long as delivery of a prospectus
by an Underwriter or dealer may
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<PAGE> 16
be required by the Securities Act or the Securities Rules, as many
copies of the Prospectus and any amendments thereof and supplements
thereto as the Underwriter may reasonably request.
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Underwriter copies of
such financial statements and other periodic and special reports as
the Company may from time to time distribute generally to the
holders of any class of its capital stock and furnish to the
Underwriter a copy of each annual or other report it shall be
required to file with the Commission.
(g) Without the prior written consent of the Underwriter
for a period of 45 days after the date of this Agreement, the
Company shall not, directly or indirectly, issue, offer, sell or
register with the Commission, or otherwise encumber or dispose of,
directly or indirectly, any equity securities of the Company (or
any securities convertible into or exercisable or exchangeable for
equity securities of the Company or any rights to purchase or
acquire equity securities of the Company), except for (i) the
issuance of the Shares pursuant to the Registration Statement, (ii)
the issuance of Common Shares in exchange for properties to be
acquired by the Company from time to time, as described in the
Registration Statement filed by the Company with the Commission on
May 19, 1999 and (iii) the issuance of Common Shares pursuant to
(x) the exercise of outstanding employee and trustee options or the
grant or issuance of options under the Company's existing stock
option plans or (y) any Company dividend reinvestment or stock
purchase plan.
(h) On or before completion of the offering of the Shares,
the Company shall make all filings required under applicable
securities laws and by the NYSE (including any required
registration under the Exchange Act).
(i) The Company will continue to elect to qualify as a
"real estate investment trust" and will use its best efforts to
continue to meet the requirement to qualify as a "real estate
investment trust."
(j) The Company agrees to pay, or reimburse if paid by the
Underwriter, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and
expenses incident to the offering of the Shares and the performance
of the obligations of the Company under this Agreement including
those relating to: (i) the preparation, printing, filing and
distribution of the Registration Statement including all exhibits
thereto, the Prospectus, all amendments and supplements to the
Registration Statement and the Prospectus, and the printing, filing
and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Underwriter; (iii)
if applicable, the registration or qualification of the Shares for
offer and sale under the securities laws of the various
jurisdictions, including the reasonable fees and disbursements of
counsel for the Underwriter in connection with any such
registration and qualification; (iv) the furnishing (including cost
of shipping and mailing) to the Underwriter of copies of the
Prospectus and all amendments or supplements to the Prospectus, and
of the several documents required by this Section to be so
furnished, as may be reasonable requested for use in connection
with the offering and the sale of the Shares by the Underwriter or
by dealers to whom Shares may be sold; (v) the filing fees of the
NASD in connection with its review of the terms of the offering of
the Shares; (vi) the furnishing (including costs of shipping and
mailing) to the Underwriter of copies of all reports and
information required by Section 5(f); (vii) inclusion of the Shares
for quotation on the NYSE; and (viii) all transfer taxes, if any,
with respect to the sale and delivery of the Shares by the Company
to the Underwriter. Subject to the provisions of Section 8, the
Underwriter agrees to pay,
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<PAGE> 17
whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, all costs and expenses incident to
the performance of the obligations of the Underwriter under this
Agreement not payable by the Company pursuant to the preceding
sentence, including, without limitation, the fees and disbursements
of counsel for the Underwriter.
(k) The Company shall file timely and accurate reports in
accordance with the provisions of Florida Statutes Section 517.05,
or any successor provision, and any regulation promulgated
thereunder, if at any time after the Effective Date, the Company or
any of its affiliates commences engaging in business with the
government of Cuba or any person or affiliate located in Cuba.
(l) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any and all losses, claims, damages
and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them,
may become subject under the Securities Act, the Exchange Act or
other federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) in whole or in part upon any breach of the representations and
warranties set forth in Section 3 hereof, or (iii) in whole or in
part upon any failure of the Company to perform any of its
obligations hereunder or under law; provided, however, that such
indemnity shall not inure to the benefit of the Underwriter (or any
person controlling the Underwriter) on account of any losses,
claims, damages or liabilities arising from the sale of the Shares
to any person by the Underwriter if such untrue statement or
omission or alleged untrue statement or omission was made in the
Registration Statement or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter concerning
the Underwriter specifically for use therein. This indemnity
agreement will be in addition to any liability which the Company
may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless
the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each trustee of the Company, and each
officer of the Company who signs the Registration Statement, to the
same extent as the foregoing indemnity from the Company to the
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in
the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter concerning the Underwriter specifically for use
therein; provided, however, that the
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<PAGE> 18
obligation of the Underwriter to indemnify the Company (including
any controlling person, trustee or officer thereof) shall be
limited to the net proceeds received by the Company from the
Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 6(a) or 6(b) shall be
available to any party who shall fail to give notice as provided in
this Section 6(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related
and was prejudiced by the failure to give such notice but the
omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability that it
may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and the approval
by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal or
other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by
the indemnifying parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the
indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the
indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written
consent, which consent shall not be unreasonably withheld or
delayed.
7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the
indemnification provided for in Section 6(a) or 6(b) is due in
accordance with its terms but for any reason is held to be
unavailable to or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b), then each indemnifying party
shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received by any
person entitled hereunder to contribution from any person who may
be liable for contribution) to which the indemnified party may be
subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Shares or, if
such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying
party not having received notice as provided in Section 6 hereof,
in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of
the Company on the one hand and the Underwriter on the other in
connection with
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<PAGE> 19
the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Underwriter shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of
underwriting discounts but before deducting expenses) received by
the Company, as set forth on the cover page of the Prospectus, bear
to (y) the underwriting discounts received by the Underwriter, as
set forth on the cover page of the Prospectus. The relative fault
of the Company or the Underwriter shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact related to information supplied by the
Company or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall the Underwriter
be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by the
Underwriter hereunder; and (ii) the Company shall be liable and
responsible for any amount in excess of such underwriting discount;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Underwriter, and each person, if any, who
controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and
each trustee of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i)
and (ii) in the immediately preceding sentence of this Section 7.
Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify such
party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution
may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this Section. No party shall
be liable for contribution with respect to any action, suit,
proceeding or claim settled without its written consent.
8. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Underwriter by
notifying the Company at any time.
(a) in the absolute discretion of the Underwriter at or
before any Closing Date: (i) if on or prior to such date, any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Underwriter will in the future
materially disrupt, the securities markets; (ii) if there has
occurred any new outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment
of the Underwriter, inadvisable to proceed with the offering; (iii)
if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of
international conditions on the financial markets in the United
States is such as to make it, in the judgment of the Underwriter,
inadvisable or impracticable to market the Shares; (iv) if trading
in the Shares has been suspended by the Commission or trading
generally on the NYSE, on the American Stock Exchange, Inc. or the
Nasdaq National Market has been suspended or limited, or minimum or
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<PAGE> 20
maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by
said exchanges or by order of the Commission, the NASD, or any
other governmental or regulatory authority; or (v) if a banking
moratorium has been declared by any state or federal authority; or
(vi) if, in the judgment of the Underwriter, there has occurred a
Material Adverse Effect; or
(b) at or before any Closing Date, that any of the
conditions specified in Section 4 shall not have been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to the Underwriter, and
the Underwriter shall not be under any liability to the Company, except that (i)
if this Agreement is terminated by the Underwriter because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriter for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by it in connection with the proposed
purchase and sale of the Shares or in contemplation of performing its
obligations hereunder and (ii) the Underwriter if it shall have failed or
refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify cancellation or
termination of its obligations under this Agreement, shall not be relieved of
liability to the Company for damages occasioned by its failure or refusal.
9. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officer and of the Underwriter set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriter or the Company or any of the officers,
trustees, directors, or controlling persons referred to in Sections 6 and 7
hereof, and shall survive delivery of and payment for the Shares. The provisions
of Sections 5(j), 6, 7 and 8 shall survive the termination or cancellation of
this Agreement.
This Agreement has been and is made for the benefit of the
Underwriter and the Company and their respective successors and assigns, and, to
the extent expressed herein, for the benefit of persons controlling the
Underwriter, or the Company, and trustees and officers of the Company, and their
respective successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser of Shares from the Underwriter merely because of
such purchase.
All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone or telegraph if subsequently
confirmed in writing, (a) if to the Underwriter, c/o CIBC World Markets Corp.,
CIBC World Markets Tower, World Financial Center, New York, New York 10281
Attention: Edward L. Carey, with a copy to Jay L. Bernstein, Esq., Rogers &Wells
LLP, 200 Park Avenue, New York, New York 10166 and (b) if to the Company, to its
agent for service as such agent's address appears on the cover page of the
Registration Statement with a copy to Marc Salle, Esq., Armstrong Teasdale LLP,
2345 Grand Boulevard, Suite 2000, Kansas City, Missouri 64108.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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<PAGE> 21
Please confirm that the foregoing correctly sets forth the agreement among us.
Very truly yours,
ENTERTAINMENT PROPERTIES TRUST
By:/s/ David M. Brain
-----------------------------
Title: Chief Operating Officer
Chief Financial Officer
Confirmed:
CIBC WORLD MARKETS CORP.
By:/s/ Steven Hason
---------------------------
Title: Executive Director
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ENTERTAINMENT PROPERTIES TRUST
Entertainment Properties Trust, a Maryland real estate investment trust (the
"Trust") under Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland ("Title 8"), desires to amend and restate its
Declaration of Trust as currently in effect and as hereinafter amended.
The following provisions are all of the provisions of the Declaration of
Trust currently in effect as hereinafter amended:
FIRST: The name of the real estate investment trust (the "Trust") is:
Entertainment Properties Trust. Under circumstances in which the Board of
Trustees of the Trust (the "Board of Trustees" or "Board") determines that the
use of the name of the Trust is not practicable or advisable, the Trust may use
any other designation or name for the Trust.
SECOND: The Trust is a real estate investment trust within the meaning of Title
8. The Trust shall not be deemed to be a general partnership, limited
partnership, joint venture, joint stock company or a corporation (but nothing
herein shall preclude the Trust from being treated for tax purposes as an
association under the Internal Revenue Code of 1986, as amended (the "Code")).
THIRD: The purposes for which the Trust is formed is to engage in any lawful act
or activity for which real estate investment trusts may be formed under the laws
of the State of Maryland.
FOURTH: The current address of the principal office of the Trust is 1221
Baltimore Avenue, Kansas City, Missouri 64105. The post office address of the
principal office of the Trust in the State of Maryland is c/o The Prentice-Hall
Corporation System, Maryland, 11 East Chase Street, Baltimore, Maryland 21202.
The name and address of the resident agent of the Trust in the State of Maryland
is The Prentice-Hall Corporation System, Maryland, 11 East Chase Street,
Baltimore, Maryland 21202. The resident agent is a corporation located in the
State of Maryland.
<PAGE> 2
FIFTH:
Section 1. The number of Trustees of the Trust shall initially be five (5),
which number may be increased or decreased from time to time by the vote of a
majority of the entire Board of Trustees, but such number shall in no case be
less than three. Any such determination shall be by the Board of Trustees and
shall continue in effect unless and until changed by the Board of Trustees, but
no such changes shall affect the term of any Trustee then serving. A majority of
the entire Board of Trustees shall constitute a quorum for the transaction of
business.
Section 2. The Trustees shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of Trustees constituting the entire
Board of Trustees. The initial Class I Trustees shall be elected for a one-year
term (expiring in 1998); the initial Class II Trustees for a two-year term
(expiring in 1999); and the initial Class III Trustees for a three-year term
(expiring in 2000). At each succeeding annual meeting of shareholders, beginning
in 1998, successors to the class of Trustees whose term expires at that annual
meeting shall be elected to serve until the third succeeding annual meeting of
shareholders and until their successors are elected and qualify, subject,
however, to prior death, resignation or removal. If the authorized number of
Trustees is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of Trustees in each class as nearly equal
as possible but in no case will a decrease in the number of Trustees shorten the
term of any incumbent Trustee. Any vacancy on the Board of Trustees (including a
vacancy created by the removal of a Trustee) may be filled by the affirmative
vote of a majority of the Trustees then in office, even if less than a quorum,
or by a sole remaining Trustee. Any Trustee elected to fill a vacancy shall
serve until the next annual meeting of shareholders and until his or her
successor shall be elected and shall qualify, subject, however, to prior death,
resignation or removal.
Section 3.(a) A Trustee shall perform his or her duties as a trustee,
including his or her duties as a member of a committee of the Board of Trustees
on which he or she serves:
(i) in good faith;
(ii) in a manner he or she reasonably believes to be in
the best interest of the Trust; and
(iii) with the care that an ordinarily prudent person in a
like position would use under similar circumstances.
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(b) In performing his or her duties, a Trustee is entitled to rely on
any information, opinion, report or statement, including any financial statement
or other financial data, prepared or presented by:
(i) an officer or employee of the Trust whom the
Trustee reasonably believes to be reliable and
competent in the matters presented;
(ii) a lawyer, certified public accountant, investment banker
or other person, as to the matter which the Trustee
reasonably believes to be within the person's
professional or expert competence; or
(iii) a committee of the Board of Trustees on which the
Trustee does not serve, as to a matter within its
designated authority, if the Trustee reasonably believes
the committee to merit confidence.
Section 4. Any Trustee may resign by written notice to the Board, effective
upon execution and delivery to the Trust of such written notice or upon any
future date specified in the notice. Subject to the rights of holders of one or
more classes or series of Preferred Shares to elect or remove one or more
Trustees, a Trustee may be removed at any time, for cause, at a meeting of the
shareholders, by the affirmative vote of two thirds of all the votes entitled to
be cast generally in the election of Trustees.
For purposes of this Section 4, "cause" shall mean and be limited to any one of
the following:
(a) A Trustee is guilty of gross negligence or willful misconduct in the
performance of his or her services on behalf of the Trust; or
(b) A Trustee is guilty of a material act or omission in the performance of his
or her services on behalf of the Trust:
(i) which was committed in bad faith; or
(ii) which was the result of active and deliberate dishonesty; or
(iii) from which the Trustee actually received an improper personal
benefit in money, property or services; or
(c) A Trustee is guilty of a criminal act in the performance of his or her
services on behalf of the Trust in which the Trustee had reasonable cause
to believe his or her act was unlawful.
SIXTH: In furtherance and not in limitation of the powers conferred by statute,
the Board of Trustees is expressly authorized to make, alter, amend or repeal
the Bylaws of the Trust. The Declaration of Trust shall be construed with the
presumption in favor of the grant of power and authority to the Board. Any
construction of the Declaration of Trust or determination made in good faith by
the Board concerning its powers and authority hereunder shall be conclusive.
SEVENTH:
Section 1. INDEMNIFICATION. The Trust shall, to the maximum extent permitted
by Maryland law in effect from time to time, indemnify (a) any individual who is
a present or former trustee or officer of the Trust or (b) any individual who,
while a trustee or officer of the Trust and at the request of the Trust, serves
or has served as a director, officer, shareholder, partner, trustee, employee or
agent of any real estate investment trust, corporation, partnership, joint
venture, trust, employee benefit plan or any other
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<PAGE> 4
enterprise, from and against any claim, liability, judgment, penalty, fine or
amount paid in settlement, together with reasonable expenses actually incurred
in advance of final disposition of a proceeding, to which such person may become
subject or which such person may incur by reason of his or her status as such.
The Trust shall have the power, with the approval of its Board of Trustees, to
provide such indemnification and advancement of expenses to a person who served
a predecessor of the Trust in any of the capacities described in (a) or (b)
above and to any employee or agent of the Trust or a predecessor of the Trust.
Section 2. INSURANCE. The Trust may purchase and maintain insurance on
behalf of any person who is or was a trustee, officer, employee or agent of the
Trust or who, while a trustee, officer, employee or agent of the Trust is or was
serving at the request of the Trust as a director, officer, shareholder,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against liability asserted against or incurred by such person in that capacity
or arising from such person's status as such, whether or not the Trust would
have the power to indemnify such person against the same liability under Section
1 of this Article SEVENTH.
EIGHTH:
Section 1. AUTHORIZED SHARES. The beneficial interest of the Trust shall be
divided into shares of beneficial interest (the "Shares"). The Trust has
authority to issue 50,000,000 common shares of beneficial interest, $0.01 par
value per share ("Common Shares"), and 5,000,000 preferred shares of beneficial
interest, $0.01 par value per share ("Preferred Shares"). The Board of Trustees,
without any action by the shareholders of the Trust, may amend the Declaration
of Trust from time to time to increase or decrease the aggregate number of
Shares or the number of Shares of any class that the Trust has authority to
issue. If shares of one class of beneficial interest are classified or
reclassified into shares of another class of beneficial interest pursuant to
Sections 2, 3 or 4 of this Article EIGHTH, the number of authorized shares of
the former class shall be automatically decreased and the number of authorized
shares of the latter class shall be automatically increased, in each case by the
number of shares so classified or reclassified, so that the aggregate number of
shares of beneficial interest of all classes that the Trust has authority to
issue shall not be more than the total number of shares of beneficial interest
set forth in the second sentence of this paragraph.
Section 2. COMMON SHARES. Subject to the provisions of Article NINTH, each
Common Share shall entitle the holder thereof to one vote on each matter upon
which holders of Common Shares are entitled to vote. The Board of Trustees may
reclassify any unissued Common Shares from time to time in one or more classes
or series of Shares.
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<PAGE> 5
Section 3. PREFERRED SHARES. The Board of Trustees may classify any unissued
Preferred Shares and reclassify any previous classified but unissued Preferred
Shares of any series from time to time in one or more series of Shares.
Section 4. CLASSIFIED OR RECLASSIFIED SHARES. Prior to issuance of
classified or reclassified Shares of any class or series, the Board of Trustees
by resolution shall (a) designate that class or series to distinguish it from
all other classes and series of Shares; (b) specify the number of Shares to be
included in the class or series; (c) set, subject to the provisions of Article
NINTH and subject to the express terms of any class or series of Shares
outstanding at the time, the preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms and conditions of redemption for each class or series;
and (d) cause the Trust to file articles supplementary with the State Department
of Assessments and Taxation of Maryland (the "SDAT"). Any of the terms of any
class or series of Shares set pursuant to clause (c) of this Section 4 may be
made dependent upon facts ascertainable outside the Declaration of Trust
(including the occurrence of any event, including a determination or action by
the Trust or any other person or body) and may vary among holders thereof,
provided that the manner in which such facts or variations shall operate upon
the terms of such class or series of Shares is clearly and expressly set forth
in the articles supplementary filed with the SDAT.
Section 5. AUTHORIZATION BY BOARD OF SHARE ISSUANCE. The Board of Trustees
may authorize the issuance from time to time of Shares of any class or series,
whether now or hereafter authorized, or securities or rights convertible into
Shares of any class or series, whether now or hereafter authorized, for such
consideration (whether in cash, property, past or future services, obligation
for future payment or otherwise) as the Board of Trustees may deem advisable (or
without consideration in the case of a Share split or Share dividend), subject
to such restrictions or limitations, if any, as may be set forth in the
Declaration of Trust or the Bylaws of the Trust.
Section 6. DIVIDENDS AND DISTRIBUTIONS. The Board of Trustees may from time
to time authorize and declare to shareholders such dividends or distributions,
in cash or other assets of the Trust or in securities of the Trust or from any
other source as the Board of Trustees in its discretion shall determine. The
Board of Trustees shall endeavor to authorize and declare such dividends and
distributions as shall be necessary for the Trust to qualify as a real estate
investment trust under the Code; however, shareholders shall have no right to
any dividend or distribution unless and until authorized and declared by the
Board. The exercise of the powers and rights of the Board of Trustees pursuant
to this Section 6 shall be subject to provisions of any class or series of
Shares at the time outstanding. Notwithstanding any other provision in the
Declaration of Trust, no determination shall be made by the Board of Trustees
nor shall any transaction be entered into by the Trust which would cause any
Shares or other beneficial interest in the Trust not
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<PAGE> 6
to constitute "transferable shares" or "transferable certificates of beneficial
interest" under Section 856(a)(2) of the Code or which would cause any
distribution to constitute a preferential dividend as described in Section
562(c) of the Code.
Section 7. GENERAL NATURE OF SHARES. All Shares shall be personal property
entitling the shareholders only to those rights provided in the Declaration of
Trust. The shareholders shall have no interest in the property of the Trust and
shall have no right to compel any partition, division, dividend or distribution
of the Trust or of the property of the Trust. The death of a shareholder shall
not terminate the Trust. The Trust is entitled to treat as shareholders only
those persons in whose names Shares are registered as holders of Shares on the
beneficial interest ledger of the Trust.
Section 8. FRACTIONAL SHARES. The Trust may, without the consent or approval
of any shareholder, issue fractional Shares, eliminate a fraction of a Share by
rounding up or down to a full Share, arrange for the disposition of a fraction
of a Share by the person entitled to it, or pay cash for the fair value of a
fraction of a Share.
Section 9. DECLARATION AND BYLAWS. All shareholders are subject to the
provisions of the Declaration of Trust and the Bylaws of the Trust.
Section 10. DECLARATION AND COMBINATIONS OF SHARES. Subject to an express
provision to the contrary in the terms of any class or series of beneficial
interest hereafter authorized, the Board of Trustees shall have the power to
divide or combine the outstanding shares of any class or series of beneficial
interest, without a vote of shareholders, so long as the number of shares
combined into one share in any such combination or series of combinations within
any period of twelve months is not greater than 100.
NINTH:
Section 1. DEFINITIONS. For the purposes of this Article NINTH, the
following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Shares by a Person who (i)
would be treated as an owner of such Shares under section 542(a)(2) of the Code
either directly or constructively through the application of Section 544 of the
Code, as modified by Section 856(h)(1)(B) of the Code or (ii) would be treated
as an owner of such Shares under Section 318(a) of the Code, as modified by
Section 856(d)(5) of the Code. The terms "Beneficial Owner," "Beneficially
Owns," "Beneficially Own" and "Beneficially Owned" shall have the correlative
meanings.
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<PAGE> 7
"Charitable Beneficiary" shall mean an organization or organizations
described in Sections 170(b)(1)(A) and 170(c) of the Code and identified by the
Board of Trustees as the beneficiary or beneficiaries of the Excess Share Trust.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Excess Shares" shall mean Shares resulting from an event described in
Section 3 of this Article NINTH.
"Excess Share Trust" shall mean the trust created pursuant to Section 3 and
Section 14 of this Article NINTH.
"Excess Share Trustee" shall mean a person, who shall be unaffiliated with
the Trust, any Purported Beneficial Transferee and any Purported Record
Transferee, identified by the Board of Trustees as the trustee of the Excess
Share Trust.
"Fair Market Value" shall mean the last reported sales price reported on the
New York Stock Exchange for Shares on the trading day immediately preceding the
relevant date, or if not then traded on the New York Stock Exchange, the last
reported sales price for Shares on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over or through
which such Shares may be traded, or if not then traded over or through any
exchange or quotation system, then the market price of such Shares on the
relevant date as determined in good faith by the Board of Trustees.
"Initial Public Offering" shall mean the sale of Shares to the public
pursuant to the Trust's first effective registration statement for such Shares
under the Securities Act of 1933, as amended.
"Ownership Limit" shall initially mean 9.8%, in number of Shares or value,
of the outstanding Shares of any class or series of Common Stock or Preferred
Stock of the Trust. The number and value of the outstanding Shares of any class
or series of Common Stock or Preferred Stock of the Trust shall be determined by
the Board of Trustees in good faith, which determination shall be conclusive for
all purposes hereof.
"Person" shall mean an individual, corporation, partnership, estate, trust
(including a trust qualified under Section 401(a) or 501(c)(17) of the Code),
portion of a trust permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
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<PAGE> 8
"Purported Beneficial Transferee" shall mean, with respect to any purported
Transfer which results in Excess Shares, as defined below in Section 3 of this
Article NINTH, the Person who would have been the beneficial holder of the
Shares, if such Transfer had been valid under Section 2 of this Article NINTH.
"Purported Record Transferee" shall mean, with respect to any purported
Transfer which results in Excess Shares, as defined below in Section 3 of this
Article NINTH, the Person who would have been the record holder of the Shares,
if such Transfer had been valid under Section 2 of this Article NINTH.
"REIT" shall mean a real estate investment trust under Section 856 of the
Code.
"REIT Provisions of the Code" means Sections 856 through 860 of the Code and
any successor or other provisions of the Code relating to real estate investment
trusts (including provisions as to the attribution of ownership of beneficial
interests therein) and the regulations promulgated thereunder.
"Restriction Termination Date" shall mean the first day after the date of
the Initial Public Offering on which the Board of Trustees determines that it is
no longer in the best interests of the Trust to attempt to, or continue to,
qualify as a REIT.
"Shares" shall mean the shares of the Trust as may be authorized and issued
from time to time pursuant to Article EIGHTH.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or other
disposition of Shares (including (a) the granting of any option or entering into
any agreement for the sale, transfer or other disposition of Shares, (b) the
sale, transfer, assignment or other disposition of any securities or rights
convertible into or exchangeable for Shares and (c) any transfer or other
disposition of any interest in Shares as a result of a change in the marital
status of the holder thereof), whether voluntary or involuntary, whether of
record, constructively or beneficially and whether by operation of law or
otherwise. The terms "Transfers" and "Transferred" shall have the correlative
meanings.
Section 2. OWNERSHIP LIMITATION.
(A) Except as provided in Section 11 and Section 19 of this Article NINTH
and subject to clause (E) of this Section 2, from the date of the Initial Public
Offering until the Restriction Termination Date, no Person, or Persons acting as
a group, shall Beneficially Own Shares in excess of the Ownership Limit.
(B) Except as provided in Section 11 and Section 19 of this Article NINTH
and subject to clause (E) of this Section 2, from the date of the Initial Public
Offering until the
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<PAGE> 9
Restriction Termination Date, any Transfer that, if effective, would result in
any Person Beneficially Owning Shares in excess of the Ownership Limit shall be
void ab initio as to the Transfer of such Shares which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
intended transferee shall acquire no rights in such Shares.
(C) Except as provided in Section 11 and Section 19 of this Article NINTH
and subject to clause (E) of this Section 2, from the date of the Initial Public
Offering until the Restriction Termination Date, any Transfer that, if
effective, would result in the Shares being beneficially owned (as provided in
Section 856(a) of the Code) by less than 100 Persons (determined without
reference to any rules of attribution) shall be void ab initio as to the
Transfer of such Shares which would be otherwise beneficially owned (as provided
in Section 856(a) of the Code) by the transferee; and the intended transferee
shall acquire no rights in such Shares.
(D) Except as provided in Section 11 and Section 19 of this Article NINTH
and subject to clause (E) of this Section 2, from the date of the Initial Public
Offering until the Restriction Termination Date, any Transfer that, if
effective, would result in the Trust being "closely held" within the meaning of
Section 856(h) of the Code shall be void ab initio as to the Transfer of the
Shares which would cause the Trust to be "closely held" within the meaning of
Section 856(h) of the Code; and the intended transferee shall acquire no rights
in such Shares.
(E) Nothing contained in this Article NINTH shall preclude the settlement of
any transaction entered into through the facilities of the New York Stock
Exchange. The fact that the settlement of any transaction occurs or takes place
shall not negate the effect of any other provision of this Article NINTH and any
transferee in such a transaction shall be subject to all of the provisions and
limitations set forth in this Article NINTH.
Section 3. EXCESS SHARES.
(A) If, notwithstanding the other provisions contained in this Article
NINTH, at any time after the date of the Initial Public Offering until the
Restriction Termination Date, there is a purported Transfer such that any Person
would Beneficially Own Shares in excess of the applicable Ownership Limit, then,
except as otherwise provided in Section 11 of this Article NINTH, Shares
directly owned by such Person in excess of the Ownership Limit shall be
automatically designated as Excess Shares (without reclassification) until such
Person does not own Shares in excess of the applicable Ownership Limit. The
designation of such Shares as Excess Shares shall be effective as of the close
of business on the business day prior to the date of the purported Transfer. If,
after designation of such Shares owned directly by a Person as Excess Shares,
such Person still owns Shares in excess of the applicable Ownership Limit,
Shares Beneficially Owned by such Person constructively in excess of the
Ownership Limit shall be designated as
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Excess Shares until such Person does not own Shares in excess of the applicable
Ownership Limit. Where such Person owns Shares constructively through one or
more Persons and the Shares held by such other Persons must be designated as
Excess Shares, the designation of Shares as Excess Shares held by such other
Persons shall be pro rata.
(B) If, notwithstanding the other provisions contained in this Article
NINTH, at any time after the date of the Initial Public Offering until the
Restriction Termination Date, there is a purported Transfer of Shares or any
sale, transfer, gift, assignment, devise or other disposition of shares or other
interests of a direct or indirect shareholder of the Trust which, if effective,
would cause the Trust to become "closely held" within the meaning of Section
856(h) of the Code, then any Shares being Transferred which would cause the
Trust to be "closely held" within the meaning of Section 856(h) of the Code
(rounded up to the nearest whole Share) shall be automatically designated as
Excess Shares and be treated as provided in this Article NINTH. Such designation
and treatment shall be effective as of the close of business on the business day
prior to the date of the purported Transfer. If, after the designation of any
such Shares as Excess Shares, the Trust is still "closely held" within the
meaning of Section 856(h) of the Code, an amount of Shares owned directly by any
individual whose Beneficial Ownership of Shares in the Trust increased as a
result of the sale, transfer, gift, assignment, devise or other disposition of
shares or other interests of a direct or indirect shareholder of the Trust and
is one of the five individuals who caused the Trust to be "closely held" within
the meaning of Section 856(h) of the Code, shall be automatically designated as
Excess Shares until the Trust is not "closely held" within the meaning of
Section 856(h) of the Code. Where several similarly situated individuals exist,
the designation of Shares as Excess Shares shall be pro rata. If, after applying
the foregoing provisions the Trust is still "closely held" within the meaning of
Section 856(h) of the Code, any Shares constructively owned by such individuals
shall be designated as Excess Shares, on a pro rata basis among similarly
situated individuals, until the Trust is not "closely held" within the meaning
of Section 856(h) of the Code.
(C) If, at any time after the date of the Initial Public Offering until the
Restriction Termination Date, an event other than a purported Transfer (an
"Event") occurs which would cause any Person to Beneficially Own Shares in
excess of the Ownership Limit, then, except as otherwise provided in Section 11
of this Article NINTH, Shares Beneficially Owned by such Person in excess of the
Ownership Limit shall be automatically designated as Excess Shares to the extent
necessary to eliminate such excess ownership. The designation of Shares as
Excess Shares shall be effective as of the close of business on the business day
prior to the date of the Event. In determining which Shares are designated as
Excess Shares, Shares Beneficially Owned by any Person who caused the Event to
occur shall be designated as Excess Shares before any Shares not so held are
designated. Where several similarly situated Persons exist, the designation of
Shares as Excess Shares shall be pro rata. If any Person is required to
designate Shares as Excess
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Shares pursuant to this Clause (C) of this Section 3 of this Article NINTH, such
Person shall first designate Shares directly held by such Person before
designating Shares Beneficially Owned constructively. Where such Person owns
Shares constructively through one or more Persons and the Shares held by such
other Persons must be designated as Excess Shares, the designation of Shares by
such other Persons shall be pro rata.
Section 4. PREVENTION OF TRANSFER. If the Board of Trustees or its designee
shall at any time determine in good faith that a Transfer has taken place in
violation of Section 2 of this Article NINTH or that a Person intends to acquire
or has attempted to acquire Beneficial Ownership (determined without reference
to any rules of attribution) of any Shares in violation of Section 2 of this
Article NINTH, the Board of Trustees or its designee shall take such action as
it deems advisable to refuse to give effect to or to prevent such Transfer,
including, but not limited to, refusing to give effect to such Transfer on the
books of the Trust or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers or attempted Transfers in violation of Section 2 of
this Article NINTH shall automatically result in the designation and treatment
described in Section 3 of this Article NINTH, irrespective of any action (or
non-action) by the Board of Trustees.
Section 5. NOTICE TO TRUST. Any Person who acquires or attempts to acquire
Shares in violation of Section 2 of this Article NINTH, or any Person who is a
transferee such that Excess Shares result under Section 3 of this Article NINTH,
shall immediately give written notice or, in the event of a proposed or
attempted Transfer, give at least 15 days prior written notice to the Trust of
such event. Such person shall also provide to the Trust such other information
as the Trust may request in order to determine the effect, if any, of such
Transfer or attempted Transfer on the Trust's status as a REIT and shall execute
and deliver such instruments and provide such further cooperation and assistance
as the Board of Trustees deems advisable to preserve the status of the Trust as
a REIT.
Section 6. INFORMATION FOR TRUST. From the date of the Initial Public
Offering until the Restriction Termination Date:
(A) every Beneficial Owner of more than 5% (or such other lower percentages
as required pursuant to regulations under the Code) of the number or value of
any class or series of Common Stock or Preferred Stock of the Trust shall,
within 30 days after January 1 of each year, give written notice to the Trust
stating the name and address of such Beneficial Owner, the number of Shares of
such class or series of Common Stock or Preferred Stock Beneficially Owned, and
a description of how such Shares are held. Each such Beneficial Owner shall
provide to the Trust such additional information as the Trust may reasonably
request in order to determine the effect, if any, of such Beneficial Ownership
on the Trust's status as a REIT and to ensure compliance with the Ownership
Limit.
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(B) each Person who is a Beneficial Owner of Shares and each Person
(including the shareholder of record) who is holding Shares for a Beneficial
Owner shall provide to the Trust in writing such information with respect to
direct, indirect and constructive ownership of Shares as the Board of Trustees
deems reasonably necessary to comply with the provisions of the Code applicable
to a REIT, to determine the Trust's status as a REIT, to comply with the
requirements of any taxing authority or governmental agency or to determine any
such compliance.
Section 7. OTHER ACTION BY BOARD. Subject to Section 2 of this Article
NINTH, nothing contained in this Article NINTH shall limit the authority of the
Board of Trustees to take such other action as it deems necessary or advisable
to protect the Trust and the interests of its shareholders by preservation of
the Trust's status as a REIT, provided, however, that no provision of this
Section 7 shall preclude the settlement of any transaction entered into through
the facilities of the New York Stock Exchange.
Section 8. AMBIGUITIES. In the case of an ambiguity in the application of
any of the provisions of this Article NINTH, including any definition contained
in Section 1, the Board of Trustees shall have the power to determine the
application of the provisions of this Article NINTH with respect to any
situation based on the facts known to it. In the event this Article NINTH
requires or permits an action by the Board of Trustees and the Declaration of
Trust fails to provide specific guidance with respect to such action, the Board
of Trustees shall have the power to determine the action to be taken so long as
such action is not contrary to the provisions of Article NINTH.
Section 9. INCREASE OR DECREASE IN OWNERSHIP LIMIT. Subject to the
limitations provided in Section 10 of this Article NINTH, the Board of Trustees
may from time to time increase or decrease the Ownership Limit; provided,
however, that any decrease may only be made prospectively as to subsequent
holders (other than a decrease as a result of a retroactive change in existing
law that would require a decrease to retain REIT status, in which case such
decrease shall be effective immediately).
Section 10. LIMITATIONS ON CHANGES IN OWNERSHIP LIMITS.
(A) The Ownership Limit may not be increased if, after giving effect to such
increase, five individual Beneficial Owners of Shares could Beneficially Own, in
the aggregate, more than 49.9% in number or value of the outstanding Shares.
(B) Prior to the modification of any Ownership Limit pursuant to Section 9
of this Article NINTH, the Board of Trustees may require such opinions of
counsel, affidavits, undertakings or agreements as it may deem necessary or
advisable in order to determine or ensure the Trust's status as a REIT.
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(C) No Ownership Limit may be increased to a percentage which is greater
than 9.9%.
Section 11. WAIVERS BY THE BOARD. The Board of Trustees with a ruling from
the Internal Revenue Service, an opinion of counsel to the effect that such
exemption will not result in the Trust being "closely held" within the meaning
of Section 856(h) of the Code, or such other evidence as the Board of Trustees
deems necessary in its sole discretion may exempt, on such conditions and terms
as the Board of Trustees deems necessary in its sole discretion, a Person from
the Ownership Limit if the Board of Trustees obtains such representations and
undertakings from such Person as the Board of Trustees may deem appropriate and
such Person agrees that any violation of the terms of such exemption or
attempted violation of the same will result in, to the extent necessary, the
designation of Shares held by such Person as Excess Shares in accordance with
Section 3 of this Article NINTH.
Section 12. LEGEND. Each certificate for Shares shall bear substantially
the following legend:
The securities represented by this certificate are subject to restrictions on
ownership and transfer for the purpose of the Trust's maintenance of its status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended. Except as otherwise provided pursuant to the Declaration of Trust of
the Trust, no Person may Beneficially Own Shares in excess of 9.8% (or such
greater percentage as may be determined by the Board of Trustees of the Trust)
of the number or value of the outstanding Shares of any class or series of the
Common Stock or Preferred Stock of the Trust. Any Person who attempts or
proposes to Beneficially Own Shares in excess of the above limitations must
notify the Trust in writing at least 15 days prior to such proposed or attempted
Transfer. All capitalized terms in this legend have the meanings defined in the
Declaration of Trust of the Trust, a copy of which, including the restrictions
on transfer, will be furnished to each shareholder on request and without
charge. If the restrictions on transfer are violated, the securities represented
hereby which are in excess of the above limitations will be designated and
treated as Excess Shares which will be held in trust by the Excess Share Trustee
for the benefit of the Charitable Beneficiary.
Instead of the foregoing legend, the certificate may state that the Trust
will furnish a full statement about certain restrictions on transferability to a
shareholder on request and without charge.
Section 13. SEVERABILITY. If any provision of this Article NINTH or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining
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provisions shall be affected only to the extent necessary to comply with the
determination of such court.
Section 14. TRANSFER OF EXCESS SHARES. Upon any purported Transfer that
results in Excess Shares pursuant to Section 3 of this Article NINTH, such
Excess Shares shall be deemed to have been transferred to the Excess Share
Trustee, as trustee of a special trust for the exclusive benefit of the
Charitable Beneficiary. The Trust shall name a Charitable Beneficiary, if one
does not already exist, within five days of the discovery of any designation of
any Excess Shares; however, the failure to so name a Charitable Beneficiary
shall not affect the designation of Shares as Excess Shares or the transfer
thereof to the Excess Share Trustee. Excess Shares so held in trust shall be
issued and outstanding Shares of the Trust. The Purported Record Transferee or
Purported Record Holder shall have no rights in such Excess Shares except as
provided in Section 17 of this Article NINTH.
Section 15. DISTRIBUTIONS ON EXCESS SHARES. Any dividends (whether taxable
as a dividend, return of capital or otherwise) on Excess Shares shall be paid to
the Excess Share Trust for the benefit of the Charitable Beneficiary. Upon
liquidation, dissolution or winding up, the Purported Record Transferee shall
receive, for each Excess Share, the lesser of (1) the amount per share of any
distribution made upon liquidation, dissolution or winding up or (2) the price
paid by the Purported Record Transferee for the Excess Shares, or if the
Purported Record Transferee did not give value for the Excess Shares, the Fair
Market Value of the Excess Shares on the day of the event causing the Excess
Shares to be held in trust. Any such dividend paid or distribution paid to the
Purported Record Transferee in excess of the amount provided in the preceding
sentence prior to the discovery by the Trust that the Shares with respect to
which the dividend or distribution was made had been designated as Excess Shares
shall be repaid, upon demand, to the Excess Share Trust for the benefit of the
Charitable Beneficiary.
Section 16. VOTING OF EXCESS SHARES. The Excess Share Trustee shall be
entitled to vote the Excess Shares on behalf of the Charitable Beneficiary on
any matter. Subject to Maryland law, any vote cast by a Purported Record
Transferee with respect to the Excess Shares prior to the discovery by the Trust
that the Excess Shares were held in trust will be rescinded ab initio; provided,
however, that if the Trust has already taken irreversible action with respect to
a merger, reorganization, sale of all or substantially all the assets,
dissolution of the Trust or other action by the Trust, then the vote cast by the
Purported Record Transferee shall not be rescinded. The owner of the Excess
Shares will be deemed to have given an irrevocable proxy to the Excess Share
Trustee to vote the Excess Shares for the benefit of the Charitable Beneficiary.
Notwithstanding the provisions of this Article NINTH, until the Trust has
received notification that Excess Shares have been transferred into an Excess
Share Trust, the Trust
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shall be entitled to rely on its share transfer and other shareholder records
for purposes of preparing lists of shareholders entitled to vote at meetings,
determining the validity and authority of proxies and otherwise conducting votes
of shareholders.
Section 17. NON-TRANSFERABILITY OF EXCESS SHARES. Excess Shares shall be
transferable only as provided in this Section 17. At the direction of the Board
of Trustees, the Excess Share Trustee shall transfer the Shares held in the
Excess Share Trust to a Person or Persons whose ownership of such Shares will
not violate the Ownership Limit. If such a transfer is made to such a Person or
Persons, the interest of the Charitable Beneficiary shall terminate and proceeds
of the sale shall be payable to the Purported Record Transferee and to the
Charitable Beneficiary. The Purported Record Transferee shall receive the lesser
of (1) the price paid by the Purported Record Transferee for the Shares or, if
the Purported Record Transferee did not give value for the Shares, the Fair
Market Value of the Shares on the day of the event causing the Shares to be held
in trust, or (2) the price received by the Excess Share Trust from the sale or
other disposition of the Shares. Any proceeds in excess of the amount payable to
the Purported Record Transferee will be paid to the Charitable Beneficiary. The
Excess Share Trustee shall be under no obligation to obtain the highest possible
price for the Excess Shares. Prior to any transfer of any Excess Shares by the
Excess Share Trustee, the Trust must have waived in writing its purchase rights
under Section 18. It is expressly understood that the Purported Record
Transferee may enforce the provisions of this Section against the Charitable
Beneficiary.
If any of the foregoing restrictions on transfer of Excess Shares is
determined to be void, invalid or unenforceable by any court of competent
jurisdiction, then the Purported Record Transferee may be deemed, at the option
of the Trust, to have acted as an agent of the Trust in acquiring such Excess
Shares in trust and to hold such Excess Shares on behalf of the Trust.
Section 18. CALL BY TRUST ON EXCESS SHARES. Excess Shares shall be deemed to
have been offered for sale to the Trust, or its designee, at a price per Share
equal to the lesser of (a) the price per Share in the transaction that created
such Excess Shares (or, in the case of a devise, gift or other transaction in
which no value was given for such Excess Shares, the Fair Market Value at the
time of such devise, gift or other transaction) and (b) the Fair Market Value of
the Excess Shares on the date the Trust, or its designee, accepts such offer
(the "Redemption Price"). The Trust shall have the right to accept such offer
for a period of ninety days after the later of (x) the date of the Purported
Transfer which resulted in such Excess Shares and (y) the date the Board of
Trustees determines in good faith that a Transfer resulting in Excess Shares has
occurred, if the Trust does not receive a notice of such Transfer pursuant to
Section 5 of this Article NINTH but in no event later than a permitted Transfer
pursuant to and in compliance with the terms of Section 17 of this Article
NINTH. Unless the Board of Trustees determines that it is in the interests of
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the Trust to make earlier payments of all of the amount determined as the
Redemption Price per Share in accordance with the preceding sentence, the
Redemption Price may be payable at the option of the Board of Trustees at any
time up to but not later than the five years after the date the Trust accepts
the offer to purchase the Excess Shares. In no event shall the Trust have an
obligation to pay interest to the Purported Record Transferee.
Section 19. UNDERWRITTEN OFFERINGS. The Ownership Limit shall not apply to
the acquisition of Shares or rights, options or warrants for, or securities
convertible into, Shares by an underwriter in a public offering, provided that
the underwriter makes a timely distribution of such Shares or rights, options or
warrants for, or securities convertible into, Shares.
Section 20. ENFORCEMENT. The Trust is authorized specifically to seek
equitable relief, including injunctive relief, to enforce the provisions of this
Article NINTH.
Section 21. NON-WAIVER. No delay or failure on the part of the Trust or the
Board of Trustees in exercising any right hereunder shall operate as a waiver of
any right of the Trust or the Board of Trustees, as the case may be, except to
the extent specifically waived in writing.
TENTH:
Section 1. MEETINGS. There shall be an annual meeting of the shareholders,
to be held on such notice and at such time (after the delivery of the annual
report) and location, within or without the State of Maryland, as shall be
determined by or in the manner prescribed in the Bylaws, for the election of the
Trustees, if required, and for the transaction of any other business within the
powers of the Trust. Except as otherwise provided in the Declaration of Trust,
special meetings of shareholders may be called in the manner provided in the
Bylaws. If there are no Trustees, the officers of the Trust shall promptly call
a special meeting of the shareholders entitled to vote for the election of
successor Trustees. Any meeting may be adjourned and reconvened as the Trustees
determine or as provided in the Bylaws.
Section 2. VOTING RIGHTS. Subject to the provisions of any class or series
of Shares then outstanding, the shareholders shall be entitled to vote only on
the following matters: (a) election of Trustees as provided in ARTICLE FIFTH and
the removal of Trustees as provided in ARTICLE FIFTH; (b) amendment of the
Declaration of Trust as provided in ARTICLE TWELFTH; (c) termination of the
Trust as provided in ARTICLE FIFTEENTH; (d) merger or consolidation of the
Trust, or the sale or disposition of substantially all of the Trust Property, as
provided in ARTICLE FOURTEENTH; and (e) such other matters with respect to which
the Board of Trustees has adopted a resolution declaring that a proposed action
is advisable and directing that the matter be submitted to
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the shareholders for approval or ratification. Except with respect to the
foregoing matters, no action taken by the shareholders at any meeting shall in
any way bind the Board of Trustees. Elections of Trustees need not be by written
ballot unless the Bylaws of the Trust so provide.
Section 3. PREEMPTIVE AND APPRAISAL RIGHTS. Except as may be provided by the
Board of Trustees in setting the terms of classified or reclassified Shares
pursuant to ARTICLE EIGHTH or as may be otherwise agreed by contract, no holder
of Shares shall, as such holder, (a) have any preemptive right to purchase or
subscribe for any additional Shares of the Trust or any other security of the
Trust which it may issue or sell or (b) except as expressly required by Title 8,
have any right to require the Trust to pay him the fair value of his Shares in
an appraisal or similar proceeding.
Section 4. SHAREHOLDER VOTE. Except as specifically provided in ARTICLE
FIFTH, notwithstanding any provision of law permitting or requiring any action
to be taken or authorized by the affirmative vote of the holders of a greater
number of votes, any such action shall be effective and valid if taken or
authorized by a majority of the number of votes entitled to be cast on the
matter.
Section 5. BOARD APPROVAL. The submission of any action to the
shareholders for their consideration shall first be approved by the Board of
Trustees.
Section 6. ACTION BY SHAREHOLDERS WITHOUT A MEETING. The Bylaws of the Trust
may provide that any action required or permitted to be taken by the
shareholders may be taken without a meeting by the written consent of the
shareholders entitled to cast a sufficient number of votes to approve the matter
as required by statute, the Declaration of Trust or the Bylaws of the Trust, as
the case may be.
Section 7. BOOKS. The books of the Trust may be kept (subject to applicable
law) outside the State of Maryland at such place or places as may be designated
from time to time by the Board of Trustees or in the Bylaws of the Trust.
ELEVENTH: The Trust reserves the right to amend, alter, change or repeal any
provision contained in this Declaration of Trust (including the contract rights
of any outstanding Shares) in the manner now or hereafter prescribed or
permitted by statute. All rights at any time conferred upon the shareholders of
the Trust by this Declaration of Trust are granted subject to the reservations
in this Article ELEVENTH.
TWELFTH: Except as otherwise specifically provided herein, any amendment to this
Declaration of Trust shall be approved by the affirmative vote of a majority of
all the votes entitled to be cast on the matter. The Board of Trustees may amend
this Declaration of Trust from time to time to qualify the Trust as a REIT under
the Code or Title 8 by the
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affirmative vote of not less than two thirds of the Trustees, without the
consent of any shareholders.
THIRTEENTH: To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of trustees and officers, no trustee or
officer of the Trust shall be liable to the Trust or its shareholders for money
damages. Neither the amendment nor repeal of this Article THIRTEENTH, nor the
adoption or amendment of any other provision of the Declaration of Trust or
Bylaws of the Trust inconsistent with this Article THIRTEENTH, shall apply to or
affect in any respect the applicability of the preceding sentence with respect
to any act or failure to act which occurred prior to such amendment, repeal or
adoption. In the absence of any Maryland statute limiting the liability of
trustees and officers of a Maryland real estate investment trust for money
damages in a suit by or on behalf of the Trust or by any shareholder, no Trustee
or officer of the Trust shall be liable to the Trust or to any shareholder for
money damages except to the extent that (a) the Trustee or officer actually
received an improper benefit or profit in money, property, or services, in which
event such Trustee or officer shall be liable for the amount of the benefit or
profit in money, property, or services actually received; or (b) a judgment or
other final adjudication adverse to the Trustee or officer is entered in a
proceeding based on a finding in the proceeding that the Trustee's or officer's
action or failure to act was the result of active and deliberate dishonesty and
was material to the cause of action adjudicated in the proceeding.
FOURTEENTH: Subject to the provisions of any class or series of Shares at the
time outstanding, the Trust may (a) merge the Trust with or into another entity,
(b) consolidate the Trust with one or more other entities into a new entity or
(c) sell, lease, exchange or otherwise transfer all or substantially all of the
Trust Property. Any such action must be approved by the Board of Trustees in the
manner provided in Title 8 and, after notice to all shareholders entitled to
vote on the matter, by the affirmative vote of a majority of all the votes
entitled to be cast on the matter.
FIFTEENTH:
Section 1. DURATION. The Trust shall continue perpetually unless
terminated pursuant to Section 2 of this ARTICLE FIFTEENTH or any applicable
provision of Title 8.
Section 2. TERMINATION.
(a) Subject to the provisions of any class or series of Shares at the
time outstanding, the Trust may be terminated at any meeting of shareholders, by
the affirmative vote of a majority of all the votes entitled to be cast on the
matter. Upon the termination of the Trust:
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(i) The Trust shall carry on no business except for the purpose of
winding up its affairs.
(ii) The Trustees shall proceed to wind up the affairs of the Trust
and all of the powers of the Trustees under the Declaration of Trust shall
continue, including the powers to fulfill or discharge the Trust's contracts,
collect its assets, sell, convey, assign, exchange, transfer or otherwise
dispose of all or any part of the remaining property of the Trust to one or more
persons at public or private sale for consideration which may consist in whole
or in part of cash, securities or other property of any kind, discharge or pay
its liabilities and do all other acts appropriate to liquidate its business.
(iii) After paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and agreements as
the Board of Trustees deem necessary for their protection, the Trust may
distribute the remaining property of the Trust among the shareholders so that
after payment in full or the setting apart for payment of such preferential
amounts, if any, to which the holders of any Shares at the time outstanding
shall be entitled, the remaining property of the Trust shall, subject to any
participating or similar rights of Shares at the time outstanding, be
distributed ratably among the holders of Common Shares at the time outstanding.
(b) After termination of the Trust, the liquidation of its business and
the distribution to the shareholders as herein provided, a majority of the
Trustees shall execute and file with the Trust's records a document certifying
that the Trust has been duly terminated, and the Trustees shall be discharged
from all liabilities and duties hereunder, and the rights and interests of all
shareholders shall cease.
SIXTEENTH: The undersigned Chairman acknowledges this Declaration of Trust to be
the act of the Trust and as to all matters or facts required to be verified
under oath, the undersigned Chairman acknowledges that to the best of his
knowledge, information and belief, these matters and facts are true in all
material respects and that this statement is made under the penalties for
perjury.
SEVENTEENTH: This Declaration of Trust is executed by the undersigned Trustee
and delivered in the State of Maryland with reference to the laws thereof, and
the rights of all parties and the validity, construction and effect of every
provision hereof shall be subject to and construed according to the laws of the
State of Maryland without regard to conflicts of laws provisions thereof.
EIGHTEENTH: Any certificate shall be final and conclusive as to any person
dealing with the Trust if executed by the Secretary or an Assistant Secretary of
the Trust or a Trustee, and if certifying to: (a) the number or identity of
Trustees, officers of the Trust or shareholders; (b) the due authorization of
the execution of any document; (c) the action
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or vote taken, and the existence of a quorum, at a meeting of the Board of
Trustees or shareholders; (d) a copy of the Declaration of Trust or of the
Bylaws as a true and complete copy as then in force; (e) an amendment to the
Declaration of Trust; (f) the termination of the Trust; or (g) the existence of
any fact relating to the affairs of the Trust. No purchaser, lender, transfer
agent or other person shall be bound to make any inquiry concerning the validity
of any transaction purporting to be made by the Trust on its behalf or by any
officer, employee or agent of the Trust.
NINETEENTH: In this Declaration of Trust, unless the context otherwise requires,
words used in the singular or in the plural include both the plural and singular
and words denoting any gender include all genders. The title and headings of
different parts are inserted for convenience and shall not affect the meaning,
construction or effect of this Declaration of Trust. In defining or interpreting
the powers and duties of the Trust and its Trustees and officers, reference may
be made by the Trustees or officers, to the extent appropriate and not
inconsistent with the Code or Title 8, to Titles 1 through 3 of the Corporations
and Associations Article of the Annotated Code of Maryland. In furtherance and
not in limitation of the foregoing, in accordance with the provisions of Title
3, Subtitles 6 and 7, of the Corporations and Associations Article of the
Annotated Code of Maryland, the Trust shall be included within the definition of
"corporation" for purposes of such provisions.
IN WITNESS WHEREOF, the Trust has caused this Declaration of Trust to be
signed in its name and on its behalf by its Chairman and attested to by its
Secretary on this ___ day of _____, 1997.
ENTERTAINMENT PROPERTIES TRUST
By:
-----------------------------------
Peter C. Brown
Chairman
ATTEST:
- - ----------------------------
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Secretary
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EXHIBIT 3.3
ENTERTAINMENT PROPERTIES TRUST
BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Trust shall be
located at such place or places as the Trustees may designate.
Section 2. ADDITIONAL OFFICES. The Trust may have additional offices at
such places as the Board of Trustees may from time to time determine or the
business of the Trust may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE. All meetings of shareholders shall be held at the
principal office of the Trust or at such other place within the United States as
shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the shareholders for the
election of Trustees and the transaction of any business within the powers of
the Trust shall be held during the second quarter of each year, after the
delivery of the annual report, referred to in Section 12 of this Article II, at
a convenient location and on proper notice, on a date and at the time set by the
Trustees, beginning with the year 1998. Failure to hold an annual meeting does
not invalidate the Trust's existence or affect any otherwise valid acts of the
Trust.
Section 3. SPECIAL MEETINGS. The chairman of the board or the president or
one-third of the Trustees may call special meetings of the shareholders. Special
meetings of shareholders shall also be called by the secretary upon the written
request of the holders of shares entitled to cast not less than a majority of
all the votes entitled to be cast at such meeting. Such request shall state the
purpose of such meeting and the matters proposed to be acted on at such meeting.
The secretary shall inform such shareholders of the reasonably estimated cost of
preparing and mailing notice of the meeting and, upon payment by such
shareholders to the Trust of such costs, the secretary shall give notice to each
shareholder entitled to notice of the meeting. Unless requested by shareholders
entitled to cast a majority of all the votes entitled to be cast at such
meeting, a special meeting need not be called to consider any matter which is
substantially the same as a matter voted on at any meeting of the shareholders
held during the preceding twelve months.
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Section 4. NOTICE. Not less than ten nor more than 90 days before each
meeting of shareholders, the secretary shall give to each shareholder entitled
to vote at such meeting and to each shareholder not entitled to vote who is
entitled to notice of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as otherwise may
be required by any statute, the purpose for which the meeting is called, either
by mail or by presenting it to such shareholder personally or by leaving it at
his residence or usual place of business. If mailed, such notice shall be deemed
to be given when deposited in the United States mail addressed to the
shareholder at his post office address as it appears on the records of the
Trust, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Trust may be transacted at
an annual meeting of shareholders without being specifically designated in the
notice, except such business as is required by any statute to be stated in such
notice. No business shall be transacted at a special meeting of shareholders
except as specifically designated in the notice.
Section 6. ORGANIZATION. At every meeting of the shareholders, the Chairman
of the Board, if there be one, shall conduct the meeting or, in the case of
vacancy in office or absence of the Chairman of the Board, one of the following
officers present shall conduct the meeting in the order stated: the Vice
Chairman of the Board, if there be one, the President, the Vice Presidents in
their order of rank and seniority, or a Chairman chosen by the shareholders
entitled to cast a majority of the votes which all shareholders present in
person or by proxy are entitled to cast, shall act as Chairman, and the
Secretary, or, in his absence, an assistant secretary, or in the absence of both
the Secretary and assistant secretaries, a person appointed by the Chairman
shall act as Secretary.
Section 7. QUORUM. At any meeting of shareholders, the presence in person
or by proxy of shareholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the Declaration of Trust
for the vote necessary for the adoption of any measure. If, however, such quorum
shall not be present at any meeting of the shareholders, the shareholders
entitled to vote at such meeting, present in person or by proxy, shall have the
power to adjourn the meeting from time to time to a date not more than 120 days
after the original record date without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 8. VOTING. A plurality of all the votes cast at a meeting of
shareholders duly called and at which a quorum is
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present shall be sufficient to elect a Trustee. Each share may be voted for as
many individuals as there are Trustees to be elected and for whose election the
share is entitled to be voted. A majority of the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before the meeting, unless more
than a majority of the votes cast is required herein or by statute or by the
Declaration of Trust. Unless otherwise provided in the Declaration of Trust,
each outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of shareholders.
Section 9. PROXIES. A shareholder may cast the votes entitled to be cast by
the shares owned of record by him either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the secretary of the Trust before or at the time of
the meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the Trust
registered in the name of a corporation, partnership, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such shares pursuant to a bylaw or a resolution of the
governing board of such corporation or other entity or agreement of the partners
of the partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such shares. Any trustee or other
fiduciary may vote shares registered in his name as such fiduciary, either in
person or by proxy.
Shares of the Trust directly or indirectly owned by it shall not be voted
at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held
by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
The Trustees may adopt by resolution a procedure by which a shareholder may
certify in writing to the Trust that any shares registered in the name of the
shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who may
make the certification, the purpose for which the certification may be made, the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the share transfer
books, the time after the record date or closing of the share transfer books
within which the
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certification must be received by the Trust; and any other provisions with
respect to the procedure which the Trustees consider necessary or desirable. On
receipt of such certification, the person specified in the certification shall
be regarded as, for the purposes set forth in the certification, the shareholder
of record of the specified shares in place of the shareholder who makes the
certification.
Section 11. INSPECTORS. At any meeting of shareholders, the chairman of the
meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be PRIMA
FACIE evidence thereof.
Section 12. REPORTS TO SHAREHOLDERS.
The Trustees shall submit to the shareholders at or before the annual
meeting of shareholders a report of the business and operations of the Trust
during such fiscal year, containing a balance sheet and a statement of income
and surplus of the Trust, accompanied by the certification of an independent
certified public accountant, and such further information as the Trustees may
determine is required pursuant to any law or regulation to which the Trust is
subject. Within the earlier of 20 days after the annual meeting of shareholders
or 120 days after the end of the fiscal year of the Trust, the Trustees shall
place the annual report on file at the principal office of the Trust and with
any governmental agencies as may be required by law and as the Trustees may deem
appropriate.
Section 13. NOMINATIONS AND PROPOSALS BY SHAREHOLDERS.
(a) ANNUAL MEETINGS OF SHAREHOLDERS. (1) Nominations of persons for
election to the Board of Trustees and the proposal of business to be considered
by the shareholders may be made at an annual meeting of shareholders (i)
pursuant to the Trust's notice of meeting, (ii) by or at the direction of the
Trustees or (iii) by any shareholder of the Trust who was a shareholder of
record both at the time of giving of notice provided for in this Section 13(a)
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and at the time of the annual meeting, who is entitled to vote at the meeting
and who complied with the notice procedures set forth in this Section 13(a).
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a) (1) of
this Section 13, the shareholder must have given timely notice thereof in
writing to the secretary of the Trust and such other business must otherwise be
a proper matter for action by shareholders. To be timely, a shareholder's notice
shall be delivered to the secretary at the principal executive offices of the
Trust not later than the close of business on the 60th day nor earlier than the
close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date or if the Trust has not previously held
an annual meeting, notice by the shareholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made by the Trust. In no event
shall the public announcement of a postponement or adjournment of an annual
meeting to a later date or time commence a new time period for the giving of a
shareholder's notice as described above. Such shareholder's notice shall set
forth (i) as to each person whom the shareholder proposes to nominate for
election or reelection as a Trustee all information relating to such person that
is required to be disclosed in solicitations of proxies for election of Trustees
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Trustee if elected); (ii) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the shareholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such shareholder, as they appear on the
Trust's books, and of such beneficial owner and (y) the number of each class of
shares of the Trust which are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)
(2) of this Section 13 to the contrary, in the event that the number of Trustees
to be elected to the Board of
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Trustees is increased and there is no public announcement by the Trust naming
all of the nominees for Trustee or specifying the size of the increased Board of
Trustees at least 70 days prior to the first anniversary of the preceding year's
annual meeting, a shareholder's notice required by this Section 13(a) shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive offices of the Trust not later than the close of business on
the tenth day following the day on which such public announcement is first made
by the Trust.
(b) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall be conducted
at a special meeting of shareholders as shall have been brought before the
meeting pursuant to the Trust's notice of meeting. Nominations of persons for
election to the Board of Trustees may be made at a special meeting of
shareholders at which Trustees are to be elected (i) pursuant to the Trust's
notice of meeting (ii) by or at the direction of the Board of Trustees or (iii)
provided that the Board of Trustees has determined that Trustees shall be
elected at such special meeting, by any shareholder of the Trust who was a
shareholder of record both at the time of giving of notice provided for in this
Section 13(b) and at the time of the special meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 13(b). In the event the Trust calls a special meeting of shareholders
for the purpose of electing one or more Trustees to the Board of Trustees, any
such shareholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Trust's notice of meeting, if the
shareholder's notice containing the information required by paragraph (a) (2) of
this Section 13 shall be delivered to the secretary at the principal executive
offices of the Trust not earlier than the close of business on the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Trustees to be elected at such
meeting. In no event shall the public announcement of a postponement or
adjournment of a special meeting to a later date or time commence a new time
period for the giving of a shareholder's notice as described above.
(c) GENERAL. (1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 13 shall be eligible to serve as Trustees
and only such business shall be conducted at a meeting of shareholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 13. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 13 and, if any proposed nomination or
business is not in compliance
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with this Section 13, to declare that such nomination or proposal shall be
disregarded.
(2) For purposes of this Section 13, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the Trust
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 13, a
shareholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 13. Nothing in this Section 13 shall be deemed
to affect any rights of shareholders to request inclusion of proposals in the
Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if a consent in writing, setting forth such action, is signed by
shareholders entitled to cast a sufficient number of votes to approve the
matter, as required by statute, the Declaration of Trust of the Trust or these
Bylaws, and such consent is filed with the minutes of proceedings of the
shareholders.
Section 15. VOTING BY BALLOT. Voting on any question or in any
election may be VIVA VOCE unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
ARTICLE III
TRUSTEES
Section 1. GENERAL POWERS; QUALIFICATIONS; TRUSTEES HOLDING OVER. The
business and affairs of the Trust shall be managed under the direction of its
Board of Trustees. A Trustee shall be an individual at least 21 years of age who
is not under legal disability. In case of failure to elect Trustees at an annual
meeting of the shareholders, the Trustees holding over shall continue to direct
the management of the business and affairs of the Trust until their successors
are elected and qualify.
Section 2. NUMBER. At any regular meeting or at any special meeting
called for that purpose, a majority of the entire Board of Trustees may
establish, increase or decrease the number of Trustees.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Trustees shall be held immediately after and at the
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same place as the annual meeting of shareholders, no notice other than this
Bylaw being necessary. The Trustees may provide, by resolution, the time and
place, either within or without the State of Maryland, for the holding of
regular meetings of the Trustees without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Trustees may be called
by or at the request of the chairman of the board or the president or by a
majority of the Trustees then in office. The person or persons authorized to
call special meetings of the Trustees may fix any place, either within or
without the State of Maryland, as the place for holding any special meeting of
the Trustees called by them.
Section 5. NOTICE. Notice of any special meeting shall be given by written
notice delivered personally, telegraphed, facsimile-transmitted or mailed to
each Trustee at his business or residence address. Personally delivered or
telegraphed notices shall be given at least two days prior to the meeting.
Notice by mail shall be given at least five days prior to the meeting.
Telephone or facsimile-transmission notice shall be given at least 24 hours
prior to the meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail properly addressed, with postage thereon
prepaid. If given by telegram, such notice shall be deemed to be given when the
telegram is delivered to the telegraph company. Telephone notice shall be deemed
given when the Trustee is personally given such notice in a telephone call to
which he is a party. Facsimile-transmission notice shall be deemed given upon
completion of the transmission of the message to the number given to the Trust
by the Trustee and receipt of a completed answer-back indicating receipt.
Neither the business to be transacted at, nor the purpose of, any annual,
regular or special meeting of the Trustees need be stated in the notice, unless
specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the entire Board of Trustees shall
constitute a quorum for transaction of business at any meeting of the Trustees,
provided that, if less than a majority of such Trustees are present at said
meeting, a majority of the Trustees present may adjourn the meeting from time to
time without further notice, and provided further that if, pursuant to the
Declaration of Trust or these Bylaws, the vote of a majority of a particular
group of Trustees is required for action, a quorum must also include a majority
of such group.
The Trustees present at a meeting which has been duly called and convened
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Trustees to leave less than a quorum.
Section 7. VOTING. The action of the majority of the Trustees present at
a meeting at which a quorum is present shall be
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the action of the Trustees, unless the concurrence of a greater proportion is
required for such action by applicable statute.
Section 8. TELEPHONE MEETINGS. Trustees may participate in a meeting by
means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 9. INFORMAL ACTION BY TRUSTEES. Any action required or permitted to
be taken at any meeting of the Trustees may be taken without a meeting, if a
consent in writing to such action is signed by each Trustee and such written
consent is filed with the minutes of proceedings of the Trustees.
Section 10. VACANCIES. If for any reason any or all the Trustees cease to
be Trustees, such event shall not terminate the Trust or affect these Bylaws or
the powers of the remaining Trustees hereunder (even if fewer than three
Trustees remain). Any vacancy (including a vacancy created by an increase in the
number of Trustees) shall be filled, at any regular meeting or at any special
meeting called for that purpose, by a majority of the Trustees. Any individual
so elected as Trustee shall hold office for the unexpired term of the Trustee he
is replacing.
Section 11. COMPENSATION; FINANCIAL ASSISTANCE.
(a) COMPENSATION. Trustees shall not receive any stated salary for their
services as Trustees but, by resolution of the Trustees, may receive
compensation per year and/or per meeting and/or per visit to real property owned
or to be acquired by the Trust and for any service or activity they performed or
engaged in as Trustees. Trustees may be reimbursed for expenses of attendance,
if any, at each annual, regular or special meeting of the Trustees or of any
committee thereof; and for their expenses, if any, in connection with each
property visit and any other service or activity performed or engaged in as
Trustees; but nothing herein contained shall be construed to preclude any
Trustees from serving the Trust in any other capacity and receiving compensation
therefor.
(b) FINANCIAL ASSISTANCE TO TRUSTEES. The Trust may lend money to,
guarantee an obligation of or otherwise assist a Trustee or a trustee of its
direct or indirect subsidiary. The loan, guarantee or other assistance may be
with or without interest, unsecured, or secured in any manner that the Board of
Trustees approves, including a pledge of Shares.
Section 12. REMOVAL OF TRUSTEES. The shareholders may, at any time,
remove any Trustee in the manner provided in the Declaration of Trust.
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Section 13. LOSS OF DEPOSITS. No Trustee shall be liable for any loss which
may occur by reason of the failure of the bank, trust company, savings and loan
association, or other institution with whom moneys or shares have been
deposited.
Section 14. SURETY BONDS. Unless required by law, no Trustee shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 15. RELIANCE. Each Trustee, officer, employee and agent of the
Trust shall, in the performance of his duties with respect to the Trust, be
fully justified and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records of the Trust,
upon an opinion of counsel or upon reports made to the Trust by any of its
officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Trustees or officers of the Trust,
regardless of whether such counsel or expert may also be a Trustee.
Section 16. INTERESTED TRUSTEE TRANSACTIONS. Section 2-419 of the Maryland
General Corporation Law (the "MGCL") shall be available for and apply to any
contract or other transaction between the Trust and any of its Trustees or
between the Trust and any other trust, corporation, firm or other entity in
which any of its Trustees is a trustee or director or has a material financial
interest.
Section 17. CERTAIN RIGHTS OF TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS. The
Trustees shall have no responsibility to devote their full time to the affairs
of the Trust. Any Trustee or officer, employee or agent of the Trust (other than
a full-time officer, employee or agent of the Trust), in his personal capacity
or in a capacity as an affiliate, employee, or agent of any other person, or
otherwise, may have business interests and engage in business activities similar
or in addition to those of or relating to the Trust.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Trustees may appoint from
among its members an Executive Committee, an Audit Committee, a Compensation
Committee and other committees, composed of one or more Trustees, to serve at
the pleasure of the Trustees.
Section 2. POWERS. The Trustees may delegate to committees appointed
under Section 1 of this Article any of the powers of the Trustees, except as
prohibited by law.
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Section 3. MEETINGS. In the absence of any member of any such committee,
the members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another Trustee to act in the place of such absent member.
Notice of committee meetings shall be given in the same manner as notice for
special meetings of the Board of Trustees.
One-third, but not less than one, of the members of any committee shall be
present in person at any meeting of such committee in order to constitute a
quorum for the transaction of business at such meeting, and the act of a
majority present shall be the act of such committee. The Board of Trustees may
designate a chairman of any committee, and such chairman or any member of any
committee may fix the time and place of its meetings unless the Board shall
otherwise provide. In the absence or disqualification of any member of any such
committee, the members thereof present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
Trustee to act at the meeting in the place of such absent or disqualified
members.
Each committee shall keep minutes of its proceedings and shall report the
same to the Board of Trustees at the next succeeding meeting, and any action by
the committee shall be subject to revision and alteration by the Board of
Trustees, provided that no rights of third persons shall be affected by any such
revision or alteration.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Trustees may
participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 5. INFORMAL ACTION BY COMMITTEES. Any action required or permitted
to be taken at any meeting of a committee of the Trustees may be taken without a
meeting, if a consent in writing to such action is signed by each member of the
committee and such written consent is filed with the minutes of proceedings of
such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of
Trustees shall have the power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate members to replace any
absent or disqualified member or to dissolve any such committee.
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ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Trust shall include a
president, a secretary and a treasurer and may include a chairman of the board,
a vice chairman of the board, a chief executive officer, a chief operating
officer, a chief financial officer, one or more vice presidents, one or more
assistant secretaries and one or more assistant treasurers. In addition, the
Trustees may from time to time appoint such other officers with such powers and
duties as they shall deem necessary or desirable. The officers of the Trust
shall be elected annually by the Trustees at the first meeting of the Trustees
held after each annual meeting of shareholders. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as may be convenient. Each officer shall hold office until his
successor is elected and qualifies or until his death, resignation or removal in
the manner hereinafter provided. Any two or more offices except president and
vice president may be held by the same person. In their discretion, the Trustees
may leave unfilled any office except that of president and secretary. Election
of an officer or agent shall not of itself create contract rights between the
Trust and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Trust may
be removed by the Trustees if in their judgment the best interests of the Trust
would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer of the Trust may
resign at any time by giving written notice of his resignation to the Trustees,
the chairman of the board, the president or the secretary. Any resignation shall
take effect at any time subsequent to the time specified therein or, if the time
when it shall become effective is not specified therein, immediately upon its
receipt. The acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the resignation. Such resignation shall be
without prejudice to the contract rights, if any, of the Trust.
Section 3. VACANCIES. A vacancy in any office may be filled by the
Trustees for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Trustees may designate a chief
executive officer from among the elected officers. The chief executive officer
shall have responsibility for implementation of the policies of the Trust, as
determined by the Trustees, and for the administration of the business affairs
of the Trust. In the absence of both the chairman and vice chairman of the
board, the chief executive officer shall preside over the
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meetings of the Trustees and of the shareholders at which he shall be present.
Section 5. CHIEF OPERATING OFFICER. The Trustees may designate a chief
operating officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 6. CHIEF FINANCIAL OFFICER. The Trustees may designate a chief
financial officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 7. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The chairman of the
board shall preside over the meetings of the Trustees and of the shareholders at
which he shall be present and shall in general oversee all of the business and
affairs of the Trust. In the absence of the chairman of the board, the vice
chairman of the board shall preside at such meetings at which he shall be
present. The chairman and the vice chairman of the board may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Trustees or by these
Bylaws to some other officer or agent of the Trust or shall be required by law
to be otherwise executed. The chairman of the board and the vice chairman of the
board shall perform such other duties as may be assigned to him or them by the
Trustees.
Section 8. PRESIDENT. In the absence of the chairman, the vice chairman of
the board and the chief executive officer, the president shall preside over the
meetings of the Trustees and of the shareholders at which he shall be present.
In the absence of a designation of a chief executive officer by the Trustees,
the president shall be the chief executive officer and shall be ex officio a
member of all committees that may, from time to time, be constituted by the
Trustees. The president may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly
delegated by the Trustees or by these Bylaws to some other officer or agent of
the Trust or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Trustees from time to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in the event
of a vacancy in such office, the vice president (or in the event there be more
than one vice president, the vice presidents in the order designated at the time
of their election or, in the absence of any designation, then in the order of
their election) shall perform the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other
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duties as from time to time may be assigned to him by the president or by the
Trustees. The Trustees may designate one or more vice presidents as executive
vice president or as vice president for particular areas of responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Trustees and committees of the Trustees in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the trust records and of the seal of the Trust; (d) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (e) have general charge of the share
transfer books of the Trust; and (f) in general perform such other duties as
from time to time may be assigned to him by the chief executive officer, the
president or by the Trustees.
Section 11. TREASURER. The treasurer shall have the custody of the funds
and securities of the Trust and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Trust and shall deposit all
moneys and other valuable effects in the name and to the credit of the Trust in
such depositories as may be designated by the Trustees.
The treasurer shall disburse the funds of the Trust as may be ordered by
the Trustees, taking proper vouchers for such disbursements, and shall render to
the president and Trustees, at the regular meetings of the Trustees or whenever
they may require it, an account of all his transactions as treasurer and of the
financial condition of the Trust.
If required by the Trustees, the treasurer shall give the Trust a bond in
such sum and with such surety or sureties as shall be satisfactory to the
Trustees for the faithful performance of the duties of his office and for the
restoration to the Trust, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, moneys and other property
of whatever kind in his possession or under his control belonging to the Trust.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Trustees. The assistant treasurers shall, if required by the
Trustees, give bonds for the faithful performance of their duties in such sums
and with such surety or sureties as shall be satisfactory to the Trustees.
Section 13. SALARIES. The salaries and other compensation of the officers
shall be fixed from time to time by the Trustees and no officer shall be
prevented from receiving such
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salary or other compensation by reason of the fact that he is also a Trustee.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Trustees may authorize any officer or agent to
enter into any contract or to execute and deliver any instrument in the name of
and on behalf of the Trust and such authority may be general or confined to
specific instances. Any agreement, deed, mortgage, lease or other document
executed by one or more of the Trustees or by an authorized person shall be
valid and binding upon the Trustees and upon the Trust when authorized or
ratified by action of the Trustees.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Trust shall be signed by such officer or agent of the Trust in such manner
as shall from time to time be determined by the Trustees.
Section 3. DEPOSITS. All funds of the Trust not otherwise employed shall be
deposited from time to time to the credit of the Trust in such banks, trust
companies or other depositories as the Trustees may designate.
ARTICLE VII
SHARES
Section 1. CERTIFICATES. Each shareholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of beneficial interests held by him in the Trust. Each
certificate shall be signed by the chairman, the president or a vice president
and countersigned by the secretary or an assistant secretary or the treasurer or
an assistant treasurer and may be sealed with the seal, if any, of the Trust.
The signatures may be either manual or facsimile. Certificates shall be
consecutively numbered; and if the Trust shall, from time to time, issue several
classes of shares, each class may have its own number series. A certificate is
valid and may be issued whether or not an officer who signed it is still an
officer when it is issued. Each certificate representing shares which are
restricted as to their transferability or voting powers, which are preferred or
limited as to their dividends or as to their allocable portion of the assets
upon liquidation or which are redeemable at the option of the Trust, shall have
a statement of such restriction, limitation, preference or redemption provision,
or a summary thereof, plainly stated on the certificate. In lieu
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of such statement or summary, the Trust may set forth upon the face or back of
the certificate a statement that the Trust will furnish to any shareholder, upon
request and without charge, a full statement of such information.
Section 2. TRANSFERS. Certificates shall be treated as negotiable and title
thereto and to the shares they represent shall be transferred by delivery
thereof to the same extent as those of a Maryland stock corporation. Upon
surrender to the Trust or the transfer agent of the Trust of a share certificate
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Trust shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its
books.
The Trust shall be entitled to treat the holder of record of any share or
shares as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of beneficial interest
of the Trust will be subject in all respects to the Declaration of Trust and all
of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Trustees
may direct a new certificate to be issued in place of any certificate previously
issued by the Trust alleged to have been lost, stolen or destroyed upon the
making of an affidavit of that fact by the person claiming the certificate to be
lost, stolen or destroyed. When authorizing the issuance of a new certificate,
an officer designated by the Trustees may, in his discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or the owner's legal representative to advertise the same
in such manner as he shall require and/or to give bond, with sufficient surety,
to the Trust to indemnify it against any loss or claim which may arise as a
result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Trustees
may set, in advance, a record date for the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or determining
shareholders entitled to receive payment of any dividend or the allotment of any
other rights, or in order to make a determination of shareholders for any other
proper purpose. Such date, in any case, shall not be prior to the close of
business on the day the record date is fixed and shall be not more than 90 days
and, in the case of a meeting of shareholders not less than ten days, before the
date on which the
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meeting or particular action requiring such determination of shareholders of
record is to be held or taken.
In lieu of fixing a record date, the Trustees may provide that the share
transfer books shall be closed for a stated period but not longer than 20 days.
If the share transfer books are closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the share transfer books are not closed for
the determination of shareholders, (a) the record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day on which the notice of meeting is mailed
or the 30th day before the meeting, whichever is the closer date to the meeting;
and (b) the record date for the determination of shareholders entitled to
receive payment of a dividend or an allotment of any other rights shall be the
close of business on the day on which the resolution of the Trustees, declaring
the dividend or allotment of rights, is adopted.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Trust shall maintain at its principal office
or at the office of its counsel, accountants or transfer agent, an original or
duplicate share ledger containing the name and address of each shareholder and
the number of shares of each class held by such shareholder.
Section 6. FRACTIONAL SHARES; ISSUANCE OF UNITS. The Trustees may issue
fractional shares or provide for the issuance of scrip, all on such terms and
under such conditions as they may determine. Notwithstanding any other provision
of the Declaration of Trust or these Bylaws, the Trustees may issue units
consisting of different securities of the Trust. Any security issued in a unit
shall have the same characteristics as any identical securities issued by the
Trust, except that the Trustees may provide that for a specified period
securities of the Trust issued in such unit may be transferred on the books of
the Trust only in such unit.
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ARTICLE VIII
ACCOUNTING YEAR
The Trustees shall have the power, from time to time, to fix the fiscal
year of the Trust by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the shares
of beneficial interest of the Trust may be authorized and declared by the
Trustees, subject to the provisions of law and the Declaration of Trust.
Dividends and other distributions may be paid in cash, property or shares of the
Trust, subject to the provisions of law and the Declaration of Trust.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any funds of the Trust available
for dividends or other distributions such sum or sums as the Trustees may from
time to time, in their absolute discretion, think proper as a reserve fund for
contingencies, for equalizing dividends or other distributions, for repairing or
maintaining any property of the Trust or for such other purpose as the Trustees
shall determine to be in the best interest of the Trust, and the Trustees may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Declaration of Trust, the Board of
Trustees may from time to time adopt, amend, revise or terminate any policy or
policies with respect to investments by the Trust as it shall deem appropriate
in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Trustees may authorize the adoption of a seal by the
Trust. The seal shall have inscribed thereon the name of the Trust and the year
of its formation. The Trustees may authorize one or more duplicate seals and
provide for the custody thereof.
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Section 2. AFFIXING SEAL. Whenever the Trust is permitted or required to
affix its seal to a document, it shall be sufficient to meet the requirements of
any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Trust.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to
time, the Trust shall indemnify (a) any Trustee or officer or any former Trustee
or officer (including among the foregoing, for all purposes of this Article XII
and without limitation, any individual who, while a Trustee or officer and at
the express request of the Trust, serves or has served another real estate
investment trust, corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise as a director, officer, partner or trustee
of such real estate investment trust, corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise) who has been successful, on
the merits or otherwise, in the defense of a proceeding to which he was made a
party by reason of service in such capacity, against reasonable expenses
incurred by him in connection with the proceeding and (b) any Trustee or officer
or any former Trustee or officer against any claim or liability to which he may
become subject by reason of such status unless it is established that (i) his
act or omission was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty,
(ii) he actually received an improper personal benefit in money, property or
services or (iii) in the case of a criminal proceeding, he had reasonable cause
to believe that his act or omission was unlawful. In addition, the Trust shall,
without requiring a preliminary determination of the ultimate entitlement to
indemnification, pay or reimburse, in advance of final disposition of a
proceeding, reasonable expenses incurred by a Trustee or officer or former
Trustee or officer made a party to a proceeding by reason of such status,
provided that the Trust shall have received (i) a written affirmation by the
Trustee or officer of his good faith belief that he has met the applicable
standard of conduct necessary for indemnification by the Trust as authorized by
these Bylaws and (ii) a written undertaking by or on his behalf to repay the
amount paid or reimbursed by the Trust if it shall ultimately be determined that
the applicable standard of conduct was not met. The Trust may, with the approval
of its Trustees, provide such indemnification or payment or reimbursement of
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expenses to any Trustee or officer or any former Trustee or officer who served a
predecessor of the Trust and to any employee or agent of the Trust or a
predecessor of the Trust. Neither the amendment nor repeal of this Article, nor
the adoption or amendment of any other provision of the Declaration of Trust or
these Bylaws inconsistent with this Article, shall apply to or affect in any
respect the applicability of this Article with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
Any indemnification or payment or reimbursement of the expenses permitted
by these Bylaws shall be furnished in accordance with the procedures provided
for indemnification or payment or reimbursement of expenses, as the case may be,
under Section 2-418 of the MGCL for directors of Maryland corporations. The
Trust may provide to Trustees or officers such other and further indemnification
or payment or reimbursement of expenses, as the case may be, to the fullest
extent permitted by the MGCL, as in effect from time to time, for directors of
Maryland corporations.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration of
Trust or Bylaws or pursuant to applicable law, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by
statute. The attendance of any person at any meeting shall constitute a waiver
of notice of such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Trustees shall have the exclusive power to alter, amend or repeal any
provision of these Bylaws and to make new Bylaws.
ARTICLE XV
MISCELLANEOUS
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All references to the Declaration of Trust shall include any amendments
thereto.
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EXHIBIT 8.2
[ARMSTRONG TEASDALE LLP LETTERHEAD]
June 2, 1999
Entertainment Properties Trust
1200 Main Street
Suite 3250
Kansas City, MO 64105
Ladies and Gentlemen:
We have acted as tax counsel to Entertainment Properties Trust, a
Maryland real estate investment trust (the "Company") in connection with the
offering and sale by the Company from time to time of up to 5,000,000 common
shares of beneficial interest, $.01 par value per share (the "Shares") which are
the subject of a registration statement on Form S-3, Registration No. 333-78727
(as amended, the "Registration Statement") filed by the Company under the
Securities Act of 1933, as amended.
You have requested our opinion as to whether the Company has operated
in a manner to qualify it as a real estate investment trust ("REIT") within the
meaning of Section 856(a) of the Internal Revenue Code of 1986, as amended (the
"Code"). This opinion is solely for the benefit of the Company and may not be
relied upon by, nor may copies be delivered to, any other person without our
prior written consent.
In our capacity as tax counsel to the Company and for the purpose of
rendering this opinion, we have examined and relied upon the following, with
your consent: (i) the Certificate dated May 18, 1999 executed and delivered to
us by the Company and certain of its executive officers (the "Certificate") and
containing representations of fact on which we have relied in giving this
opinion; (ii) the Registration Statement and the documents and reports
incorporated by reference therein, and (iii) such other documents we have
considered relevant to our analysis. In our examination of such documents, we
have assumed the authenticity of original documents, the accuracy of copies, the
genuineness of signatures, and the legal capacity of signatories. We have also
assumed that all parties to such documents have acted, and will act, in
accordance with the terms of such documents.
Our opinion is also based on (a) our understanding of the facts as
represented to us in the Certificate and the accuracy of those facts and (b) the
assumption that (i) the Company is
<PAGE> 2
ARMSTRONG TEASDALE LLP Attorneys at Law
June 2, 1999
Page 2
operated and will continue to operate in the manner described or referred to in
the Certificate and the Registration Statement, (ii) the facts contained in the
Registration Statement are accurate and complete in all material respects, and
(iii) the representations of fact contained in the Certificate are accurate and
complete in all material respects. Although we have made such inquiries and
performed such investigations as we have deemed necessary to fulfill our
professional responsibilities as counsel, we have not undertaken an independent
inquiry into or verification of all of the facts referred to in the Certificate
and the Registration Statement. While we have reviewed the representations made
to us to determine their reasonableness, we have no assurance that they are or
will ultimately prove to be accurate.
We also note that the tax consequences addressed herein depend upon the
actual occurrence of future events, which events may or may not be consistent
with the representations made to us for purposes of this opinion. In particular,
qualification and taxation of the Company as a REIT under the Code depend upon
the Company's ability to meet, on a continuing basis, prescribed distribution
levels, diversity of share ownership and the various qualification tests imposed
by the Code. To the extent the facts differ from those represented to us or
assumed by us herein, our opinion should not be relied upon.
Our opinion is based on existing law as contained in the Code, the
Treasury Regulations promulgated thereunder, administrative pronouncements of
the Internal Revenue Service ("IRS") and court decisions as of the date hereof.
The provisions of the Code and the Treasury Regulations, IRS administrative
pronouncements and case law upon which this opinion is based could be changed at
any time, perhaps with retroactive effect. In addition, some of the issues under
existing law that could significantly affect our opinion have not yet been
authoritatively addressed by the IRS or the courts. Our opinion is not binding
on the IRS or the courts, and there can be no assurance the IRS will not
challenge or that the courts will agree with our conclusions.
Based upon and subject to the foregoing and the next paragraph below,
we are of the opinion that, commencing with the Company's taxable period ended
December 31, 1997 and continuing through its taxable year ended December 31,
1998, the Company has been organized and operated in conformity with the
requirements for qualification as a REIT under the Code, and that if the Company
complies with the method of operation described or referred to in the
Registration Statement and Certificate, the Company will continue to so qualify
for so long as such method of operation is adhered to, absent any changes in the
Code, Treasury Regulations, administrative pronouncements or court decisions.
<PAGE> 3
ARMSTRONG TEASDALE LLP Attorneys at Law
June 2, 1999
Page 3
We undertake no obligation to update this opinion, or to ascertain
after the date hereof whether circumstances occurring after such date may affect
the conclusions set forth herein. We express no opinion relating to the
foregoing as to matters governed by any laws other than the Code, the Treasury
Regulations, published administrative announcements and rulings of the IRS and
case law.
We consent to the reference to our firm under the caption "Legal
Matters" in the Registration Statement, the Prospectus included therein and any
Prospectus Supplement filed in connection therewith and to the attachment of
this opinion as an Exhibit to the Registration Statement and/or an Exhibit to a
Current Report of the Company on Form 8-K.
Very truly yours,
/s/ ARMSTRONG TEASDALE LLP
ARMSTRONG TEASDALE LLP
