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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):
July 21, 1994
MEDITRUST
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(Exact name of registrant as specified in charter)
Massachusetts 0-14022 04-6532031
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(State of (Commission (I.R.S. Employer
Incorporation) File No.) Identification No.)
197 First Avenue, Needham, Massachusetts 02194
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:(617) 433-6000
This document consists of 50 pages. The exhibit index is located on page two.
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Item 5. OTHER EVENTS
On July 21, 1994, Meditrust further amended its Restated Declaration
of Trust (the "Declaration") to delete certain provisions which were previously
required by the North American Securities Administrators Association. The
amendments were approved by Meditrust's shareholders at an annual meeting held
on May 28, 1992, which was adjourned to June 25 and 26, 1992. The amended
Declaration, a conformed copy of which is included herewith as Exhibit 3.1, was
filed with the Massachusetts Secretary of State after Meditrust obtained the
consent of certain of its lenders to the amendments.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit No. Description Page
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3.1 Restated Declaration of Trust,
as amended 3
SIGNATURES
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.
MEDITRUST
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October 19, 1994 /s/ Michael S. Benjamin
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Michael S. Benjamin
Senior Vice President
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EXHIBIT 3.1
________________________________________________________________
MEDITRUST
____________________
Restated Declaration of Trust as Amended
____________________
August 6, 1985
as last amended on July 21, 1994
________________________________________________________________
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<TABLE>
INDEX
ARTICLE I
THE TRUST; DEFINITIONS
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1.1 Name ........................................ 1
1.2 Places of Business .......................... 2
1.3 Nature of Trust ............................. 2
1.4 Definitions ................................. 2
ARTICLE II
TRUSTEES
2.1 Number, Term of Office and
Qualifications of Trustees ................ 6
2.2 Compensation and Other Remuneration ......... 7
2.3 Resignation, Removal and Death
of Trustees ............................... 7
2.4 Vacancies ................................... 7
2.5 Successor and Additional Trustees ........... 7
2.6 Actions by Trustees ......................... 8
2.7 Certification of Changes in Trustees......... 8
2.8 Committees .................................. 9
2.9 Investment Committee......................... 9
ARTICLE III
TRUSTEES' POWERS
3.1 Power and Authority of Trustees ............. 9
3.2 Specific Powers and Authority ............... 10
3.3 By-Laws ..................................... 15
ARTICLE IV
ADVISOR
4.1 Employment of Advisor ....................... 15
4.2 Other Activities of Advisor ................. 16
ARTICLE V
INVESTMENT POLICY AND POLICIES
WITH RESPECT TO CERTAIN
DISTRIBUTIONS TO SHAREHOLDERS
5.1 Statement of Policy ......................... 16
5.2 Prohibited Investments and Activities ....... 17
5.3 Appraisals .................................. 17
</TABLE>
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<TABLE>
ARTICLE VI
THE SHARES AND SHAREHOLDERS
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6.1 Description of Shares ....................... 18
6.2 Certificates ................................ 18
6.3 Fractional Shares ........................... 19
6.4 Issuance of Units ........................... 19
6.5 Legal Ownership of Trust Estate ............. 20
6.6 Shares Deemed Personal Property ............. 20
6.7 Share Record; Issuance and
Transferability of Shares .................. 20
6.8 Dividends or Distributions to
Shareholders .............................. 21
6.9 Transfer Agent, Dividend Disbursing
Agent and Registrar ....................... 21
6.10 Shareholders' Meetings ...................... 21
6.11 Proxies ..................................... 23
6.12 Reports to Shareholders ..................... 23
6.13 Fixing Record Date .......................... 23
6.14 Notice to Shareholders ...................... 24
6.15 Shareholders' Disclosures; Trustees;
Right to Refuse to Transfer Shares;
Limitation on Holdings; Redemption;
of Shares ................................. 24
ARTICLE VII
LIABILITY OF TRUSTEES, SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS,
AND OTHER MATTERS
7.1 Exculpation of Trustees, Officers,
Employees and Agents ...................... 26
7.2 Limitation of Liability of
Shareholders, Trustees, Officers,
Employees and Agents ...................... 26
7.3 Express Exculpatory Clauses
and Instruments ........................... 27
7.4 Indemnification and Reimbursement
of Trustees, Officers, Employees,
and Agents ................................ 27
7.5 Right of Trustees, Officers, Employees
and Agents to Own Share or Other
Property and to Engage in Other
Business .................................. 28
7.6 Transactions Between Trustees,
Officers, Employees or Agents
and the Trust ............................. 29
7.7 Restriction of Duties and Liabilities ....... 30
</TABLE>
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<TABLE>
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Page
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7.8 Persons Dealing with Trustees,
Officers, Employees or Agents ............. 30
7.9 Reliance .................................... 30
ARTICLE VIII
DURATION, AMENDMENT AND TERMINATION
OF TRUST
8.1 Duration of Trust ........................... 31
8.2 Termination of Trust ........................ 31
8.3 Amendment Procedure ......................... 32
8.4 Amendments Effective ........................ 32
8.5 Transfer to Successor ....................... 32
8.6 Sale of Assets, Merger ...................... 33
ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law .............................. 33
9.2 Index and Headings for Reference Only ....... 33
9.3 Successors in Interest ...................... 33
9.4 Inspection of Records ....................... 33
9.5 Counterparts ................................ 33
9.6 Provisions of the Trust in Conflict with
Law or Regulations; Severability .......... 34
9.7 Certifications .............................. 34
</TABLE>
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RESTATED DECLARATION OF TRUST AS AMENDED
OF
MEDITRUST
AUGUST 6, 1985
(as last amended on July 21, 1994)
DECLARATION OF TRUST restated and amended as of the date set forth above
by the undersigned Trustees.
WITNESSETH:
WHEREAS, the Trustees desire to continue the trust originally formed and
subsequently amended and restated, as herein amended, for the principal purpose
of investing in real property and interests therein; and
WHEREAS, the Trustees desire that such trust qualify as a "real estate
investment trust" under the REIT Provisions of the Internal Revenue Code; and
WHEREAS, in furtherance of such purpose the Trustees intend to acquire
certain real property and interests therein, and other property, real, personal
or mixed, tangible and intangible, of any kind or character whatsoever, and to
hold, manage and dispose of all such property as Trustees in the manner
hereinafter stated;
WHEREAS, it is proposed that the beneficial interest in the Trust be
divided into transferable Shares of Beneficial Interest, evidenced by
certificates therefor, as hereinafter provided; and
WHEREAS, the Trustees desire to amend certain provisions of the Trust as
originally formed and subsequently amended and restated and to restate such
amended Trust in its entirety;
NOW, THEREFORE, the Restated Declaration of Trust as Amended is amended
and restated as follows and it is hereby agreed and declared that the Trustees
will hold any and all property of every type and description which they are
acquiring or may hereafter acquire as Trustees, together with the proceeds
thereof, in trust, to manage and dispose of the same for the benefit of the
holders from time to time of the Shares of Beneficial Interest being issued and
to be issued hereunder in the manner and subject to the stipulations contained
herein.
ARTICLE I
THE TRUST: DEFINITIONS
1.1 NAME. The name of the Trust created by this Declaration of
Trust shall be "Meditrust" and so far as may be practicable the Trustees shall
conduct the Trust's activities, execute all documents and sue or be sued under
that name, which name (and the word "Trust" wherever used in this Declaration of
Trust, except where the context otherwise requires) shall refer to the Trustees
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collectively but not individually or personally nor to the officers, agents,
employees or Shareholders of the Trust or of such Trustees. Under circumstances
under which the Trustees determine that the use of such name is not practicable
or under circumstances in which the Trustees are contractually bound to change
that name, they may adopt another name under which the Trust may hold property
or conduct its activities.
1.2 PLACES OF BUSINESS. The Trust shall maintain an office in
Massachusetts at such place in Massachusetts as the Trustees may determine from
time to time. The Trust may have such other offices or places of business
within or without the Commonwealth of Massachusetts as the Trustees may from
time to time determine.
1.3 NATURE OF TRUST. The Trust shall be of the type commonly
termed a Massachusetts business trust. It is intended that the Trust shall
carry on a business as a "real estate investment trust" as described in the REIT
Provisions of the Internal Revenue Code. The Trust is not intended to be, shall
not be deemed to be, and shall not be treated as a general partnership, limited
partnership, joint venture, corporation or joint stock company (but nothing
herein shall preclude the Trust from being treated for tax purposes as an
association under the REIT Provisions of the Internal Revenue Code) nor shall
the Trustees or Shareholders or any of them for any purpose be, nor be deemed to
be, nor be treated in any way whatsoever to be, liable or responsible hereunder
as partners or joint venturers. The relationship of the Shareholders to the
Trustees shall be solely that of beneficiaries of the Trust in accordance with
the rights conferred upon them by this Declaration.
1.4 DEFINITIONS. The terms defined in this Section 1.4 wherever
used in this Declaration shall, unless the context otherwise requires, have the
respective meanings hereinafter specified. Whenever the singular number is used
in this Declaration and when permitted by the context, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders and vice versa. Where applicable, calculations to be made pursuant to
any such definition shall be made in accordance with generally accepted
accounting principles as in effect from time to time except as otherwise
provided in such definition.
(a) ADVISOR. "Advisor" shall mean the Person employed by the Trustees in
accordance with the provisions of Article IV but shall not include any
individual who provides services to the Trust as an employee, advisor
or consultant, on either a full-time or part-time basis.
(b) AFFILIATE. "Affiliate" shall mean, as to any person, (i) any other
Person directly or indirectly controlling, controlled by or under common
control with such Person, (ii) any other
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Person that owns beneficially, directly or indirectly, five percent (5%) or
more of the outstanding capital stock or shares of equity interests of such
Person, or (iii) any officer, director, employee, general partner or trustee of
such Person or of any Person controlling, controlled by or under common
control, with such Person (excluding trustees and persons serving in similar
capacities who are not otherwise an Affiliate of such Person).
(c) AFFILIATED TRUSTEE. "Affiliated Trustee" shall mean a Trustee who is not
an Independent Trustee.
(d) ANNUAL MEETING OF SHAREHOLDERS. "Annual Meeting of Shareholders" shall
mean the meeting described in the first sentence of Section 6.10.
(e) ANNUAL REPORT. "Annual Report" shall have the meaning set forth in
Section 6.12.
(f) AVERAGE INVESTED ASSETS. "Average Invested Assets" for any period shall
mean the average of the values of the Invested Assets of the last day of each
month during such period.
(g) BOOK VALUE. "Book Value" of an asset or assets shall mean the value of
such asset or assets of the Trust on the books of the Trust, without deduction
for depreciation or other asset valuation reserves and without deduction for
mortgages or other security interests to which such asset or assets are subject,
except that no asset shall be valued at more than its fair market value as
determined by or under procedures adopted by the Trustees, and the underlying
assets of a partnership, joint venture or other form of indirect ownership, to
the extent of the Trust's interest therein, shall be valued as if owned by the
Trust.
(h) BY-LAWS. "By-Laws" shall have the meaning set forth in Section 3.3.
(i) DECLARATION. "Declaration" or "this Declaration" shall mean this
Declaration of Trust, as amended, restated or modified from time to time.
References in this Declaration to "herein" and "hereunder" shall be deemed to
refer to this Declaration and shall not be limited to the particular text,
article or section in which such words appear.
(j) INDEPENDENT TRUSTEE. "Independent Trustee" shall mean a Trustee, who, in
his individual capacity, (i) is not affiliated, directly or indirectly, with
an Advisor of the Trust, whether by ownership of, ownership interest in,
employment by, any business or professional relationship with, or serves as an
officer or director of, such Advisor or an affiliated business entity of such
Advisor and (ii) does not
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perform any services for the Trust except as Trustee. An indirect relationship
shall include circumstances in which a member of the immediate family of a
Trustee has one of the foregoing relationships with the Trust or an Advisor of
the Trust.
(k) INTERNAL REVENUE CODE. "Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as now enacted or hereafter amended, or successor
statutes.
(l) INVESTED ASSETS. "Invested Assets" shall mean the Book Value of all the
Real Estate Investments of the Trust.
(m) MORTGAGE LOANS. "Mortgage Loans" shall mean notes, debentures, bonds and
other evidences of indebtedness or obligations which are negotiable or
nonnegotiable and which are secured or collateralized by Mortgages.
(n) MORTGAGES. "Mortgages" shall mean mortgages, deeds of trust or other
security interests in Real Property or in rights or interests, including
leasehold interests, in Real Property.
(o) NET ASSETS. "Net Assets shall mean the total assets (other than
intangibles) at cost before deducting depreciation or other non-cash reserves
less total liabilities, calculated at least quarterly on a basis consistently
applied.
(p) NET INCOME. "Net Income" for any period shall mean the net income of the
Trust determined in accordance with generally accepted accounting principles
(calculating the net income of the Trust from any partnership, joint venture or
other form of indirect ownership as if the Trust directly received its
proportionate share of such entity's income, gains, expenses and losses,
including non-cash charges and imputed interest) for such period (i) excluding
realized gains and losses from the disposition of Trust assets (after
attributing to such disposition the taxes and fees paid in connection
therewith); (ii) before deducting additions to reserves or provisions for
depreciation, amortization, provision for bad debts and other similar non-cash
charges and imputed interest; and (iii) less the amount of any bad debts
actually charged to the provision therefor.
(q) PERSON. "Person" shall mean and include individuals, corporations,
limited partnerships, general partnerships, joint stock companies or
associations, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, or other entities and governments and
agencies and political subdivisions thereof.
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(r) REAL ESTATE INVESTMENT. "Real Estate Investment" shall mean any direct or
indirect investment in any interest in Real Property or in any Mortgage,
Mortgage Loan, or any interest therein or in any Person whose principal
purpose is to make any such investment.
(s) REAL PROPERTY. "Real Property" shall mean and include land, leasehold
interests (including but not limited to interests of a lessor or lessee
therein), rights and interests in land, and any buildings, structures,
improvements, furnishings, fixtures and equipment located on or used in
connection with land, leasehold interests or rights in land or interests
therein, but does not include investments in Mortgages, Mortgage Loans or
interests therein.
(t) REIT. "REIT" shall mean a real estate investment trust as defined in the
REIT Provisions of the Internal Revenue Code.
(u) REIT PROVISIONS OF THE INTERNAL REVENUE CODE. "REIT Provisions of the
Internal Revenue Code" shall mean Parts II and III of Subchapter M of Chapter 1
of Subtitle A of the Internal Revenue Code, or similar provisions of any
successor statute.
(v) SECURITIES. "Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness or in
general any instruments commonly known as "securities" or any certificates of
interest, shares or participations in, temporary or interim certificates for,
receipts for, guarantees of, or warrants, options or rights to subscribe to,
purchase or acquire any of the foregoing.
(w) SHAREHOLDERS. "Shareholders" shall mean as of any particular time all
holders of record of outstanding Shares at such time.
(x) SHARES. "Shares" or, as the context may require, "shares" shall mean the
shares of beneficial interest of the Trust as described in the first sentence of
Section 6.1 hereof.
(y) TOTAL ASSETS. "Total Assets" shall mean the Book Value of all the assets
of the Trust, as such Book Value appears on the most recent quarterly balance
sheet of the Trust.
(z) TOTAL OPERATING EXPENSES. "Total Operating Expenses" for any period shall
mean all cash operating expenses, including additional expenses paid directly or
indirectly by the Trust to the Advisor, Affiliates of the Advisor or third
parties based upon their relationship with the Trust, including loan
administration, servicing, engineering, inspection and all other expenses paid
by the Trust, except the expenses related
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to raising capital, for interest, taxes, and direct property acquisition,
operation, maintenance and management costs and costs of litigation.
(aa) TRUST. "Trust" shall mean the Trust created by this Declaration.
(bb) TRUSTEES. "Trustees" shall mean, as of any particular time, the
original signatories hereto as long as they hold office hereunder and
additional and successor Trustees, and shall not include the officers,
employees or agents of the Trust or the Shareholders. Nothing herein
shall be deemed to preclude the Trustees from also serving as officers,
employees or agents of the Trust or owning Shares.
(cc) TRUST ESTATE. "Trust Estate" shall mean as of any particular time any
and all property, real, personal or otherwise, tangible or intangible,
which is transferred, conveyed or paid to or purchased by the Trust or
Trustees and all rents, income, profits and gains therefrom and which at such
time is owned or held by or for the Trust or the Trustees.
ARTICLE II
TRUSTEES
2.1 NUMBER, TERM OF OFFICE AND QUALIFICATIONS OF TRUSTEES. There
shall be no fewer than three (3) nor more than twelve (12) Trustees. The
initial Trustees shall be the signatories hereto. Within the limits set forth
in this Section 2.1, the number of Trustees may be increased or decreased from
time to time by the Trustees or by the Shareholders. No reduction in the number
of Trustees shall have the effect of removing any Trustee from office prior to
the expiration of his term. Subject to the provisions of Section 2.3 each
Trustee shall hold office until the next annual meeting of Shareholders and
until the election and qualification of his successor. There shall be no
cumulative voting in the election for Trustees. A Trustee shall be an individual
at least twenty-one (21) years of age who is not under legal disability. A
majority of the Trustees shall at all times be persons who are Independent
Trustees; PROVIDED, HOWEVER, that upon a failure to comply with this requirement
because of the resignation, removal or death of a Trustee who is an Independent
Trustee, such requirement shall not be applicable for a period of sixty (60)
days. Nominees to serve as Independent Trustees shall be nominated by the then
current Independent Trustees, if any. Unless otherwise required by law, no
Trustee shall be required to give bond, surety or security in any jurisdiction
for the performance of any duties or obligations hereunder. The Trustees in
their capacity as Trustees shall not be required to devote their entire time to
the business and affairs of the Trust.
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2.2 COMPENSATION AND OTHER REMUNERATION. The Trustees shall be
entitled to receive such reasonable compensation for their services as Trustees
as the Trustees may determine from time to time. The Trustees and Trust
officers shall be entitled to receive remuneration for services rendered to the
Trust in any other capacity. Subject to Sections 7.5 and 7.6, such services may
include, legal, accounting or other professional services, or services as a
broker, transfer agent or underwriter, whether performed by a Trustee or any
person affiliated with a Trustee.
2.3 RESIGNATION, REMOVAL AND DEATH OF TRUSTEES. A Trustee may resign
at any time by giving written notice to the remaining Trustees at the principal
office of the Trust. Such resignation shall take effect on the date specified
in such notice, without need for prior accounting. A Trustee may be removed at
any time with or without cause by vote or consent of holders of Shares
representing a majority of the total votes authorized to be cast by Shares then
outstanding and entitled to vote thereon, or with cause by all remaining
Trustees. A Trustee judged incompetent or bankrupt, or for whom a guardian has
been appointed, shall be deemed to have resigned as of the date of such
adjudication or appointment. Upon the resignation or removal of any Trustee,
his legal representative shall perform the acts set forth in the preceding
sentence and the discharge mentioned therein shall run to such legal
representative and to the incapacitated Trustee or the estate of the deceased
Trustee, as the case may be.
2.4 VACANCIES. If any or all the Trustees cease to be Trustees
hereunder, whether by reason of resignation, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its continuity.
Until vacancies are filled, the remaining Trustee or Trustees (even though fewer
than three (3)) may exercise the powers of the Trustees hereunder. Vacancies
(including vacancies created by increases in number) may be filled by the
remaining Trustee or Trustees or by a majority of the remaining Trustees (or a
majority of the remaining Independent Trustees, if any, if the vacant position
was formerly held by an Independent Trustee or is required to be held by an
Independent Trustee) or by vote of the Shareholders. If at any time there shall
be no Trustees in office, successor Trustees shall be elected by the
Shareholders as provided in Section 6.10. Any Trustee elected to fill a vacancy
created by the resignation, removal or death of a former Trustee shall hold
office for the unexpired term of such former Trustee.
2.5 SUCCESSOR AND ADDITIONAL TRUSTEES. The right, title and interest
of the Trustees in and to the Trust Estate shall also vest in successor and
additional Trustees upon their qualification, and they shall thereupon have all
the rights and obligations of Trustees hereunder. Such right, title and
interest shall vest in the Trustees whether or not conveyancing documents have
been executed and delivered. Appropriate written
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evidence of the election and qualification of successor and additional Trustees
shall be filed with the records of the Trust and in such other offices or
places as the Trustees may deem necessary, appropriate or desirable.
2.6 ACTIONS BY TRUSTEES. The Trustees may act with or without a
meeting. A quorum for all meetings of the Trustees shall be a majority of the
Trustees; PROVIDED, HOWEVER, that, whenever pursuant to Section 7.6 or otherwise
the vote of a majority of a particular group of Trustees is required at a
meeting, a quorum for such meeting shall be a majority of the Trustees which
shall include a majority of such group. Unless specifically provided otherwise
in this Declaration, any action of the Trustees may be taken at a meeting by
vote of a majority of the Trustees present (a quorum being present) or without a
meeting by written consents of a majority of the Trustees, which consents shall
be filed with the records of meetings of the Trustees. Any action or actions
permitted to be taken by the Trustees in connection with the business of the
Trust may be taken pursuant to authority granted by a meeting of the Trustees
conducted by a telephone conference call or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time, and participation by such means shall constitute presence in
person at the meeting and the transaction of Trust business represented thereby
shall be of the same authority and validity as if transacted at a meeting of the
Trustees held in person or by written consent. The minutes of any Trustees'
meeting held by telephone shall be prepared in the same manner as a meeting of
the Trustees held in person. Any agreement, deed, mortgage, lease or other
instrument or writing executed by one or more of the Trustees or by any
authorized person shall be valid and binding upon the Trustees and upon the
Trust when authorized or ratified by action of the Trustees or as provided in
the By-Laws.
With respect to the actions of the Trustees, Trustees who have, or are
Affiliates of Persons who have, any direct or indirect interest in or connection
with any matter being acted upon may be counted for all quorum purposes under
this Section 2.6 and, subject to the provisions of Section 7.6, may vote on the
matter as to which they or their Affiliates have such interest or connection.
2.7 CERTIFICATION OF CHANGES IN TRUSTEES. No alteration in the
number of Trustees, no removal of a Trustee and no election or appointment of
any individual as Trustee (other than an individual who was serving as a Trustee
immediately prior to such election or appointment) shall become effective unless
and until there shall be delivered to the President or the Secretary of the
Trust an instrument in writing signed by a majority of the Trustees, certifying
to such alteration in the number of Trustees and/or to such removal of a Trustee
and/or naming the individual
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so elected or appointed as Trustee, together with his written acceptance
thereof and agreement to be bound thereby.
2.8 COMMITTEES. The Trustees may appoint from among their number such
standing committees as the Trustees determine. All members of the audit
committee, if any, shall be Independent Trustees. A majority of the members of
each standing committee shall be Independent Trustees; PROVIDED, HOWEVER, that
upon a failure to comply with this requirement because of the resignation,
removal or death of a Trustee who is an Independent Trustee, such requirement
shall not be applicable for a period of sixty (60) days. Each committee shall
have such powers, duties and obligations as the Trustees may deem necessary or
appropriate. The standing committees shall report their activities periodically
to the Trustees.
2.9 INVESTMENT COMMITTEE. The Investment Committee shall consist of
the Independent Trustees and shall have the power to approve real estate
acquisitions and sales and other investments of the Trust. In addition to such
other powers as provided in this Declaration or the By-Laws or as delegated by
the Trustees from time to time, the Investment Committee shall have the
following special duties:
(a) The Investment Committee shall review the investment policies of
the Trust at least annually to determine that the policies being
followed by the Trust are in the best interests of the Shareholders.
The basis for each determination shall be set forth in the minutes of
the Investment Committee.
(b) The Investment Committee shall supervise the performance of
the Advisor and the compensation paid to it by the Trust.
ARTICLE III
TRUSTEES' POWERS
3.1 POWER AND AUTHORITY OF TRUSTEES. The Trustees, subject only to
the specific limitations contained in this Declaration, shall have, without
further or other authorization, and free from any power or control on the part
of the Shareholders, full, absolute and exclusive power, control and authority
over the Trust Estate and over the business and affairs of the Trust to the same
extent as if the Trustees were the sole owners thereof in their own right and
may do all such acts and things as in their sole judgment and discretion are
necessary for or incidental to or desirable for the carrying out of or
conducting the business of the Trust. Any construction of this Declaration or
any determination made in good faith by the Trustees of the purposes of the
Trust or the existence of any power or authority hereunder shall be conclusive.
In construing the provisions of this Declaration, presumption shall be in favor
of the grant of powers and authority to the Trustees. The enumeration of any
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specific power or authority herein shall not be construed as limiting the
aforesaid powers or the general powers or authority or any other specified
power or authority conferred herein upon the Trustees.
3.2 SPECIFIC POWERS AND AUTHORITY. Subject only to the express
limitations contained in this Declaration and in addition to any powers and
authority conferred by this Declaration or which the Trustees may have by virtue
of any present or future statute or rule or law, the Trustees without any action
or consent by the Shareholders shall have and may exercise at any time and from
time to time the following powers and authorities which may or may not be
exercised by them in their sole judgment and discretion and in such manner and
upon such terms and conditions as they may from time to time deem proper:
(a) to retain, invest and reinvest the capital or other funds of the
Trust in, and to acquire, purchase, or own, real or personal property
of any kind, (including without limitation Securities of any Person)
wherever located in the world, and make commitments for such
investments, all without regard to whether any such property is
authorized by law for the investment of trust funds or produces or may
produce income and to possess and exercise all the rights, powers and
privileges appertaining to the ownership of the Trust Estate; and to
increase the capital of the Trust at any time by the issuance of any
additional Shares or other Securities of the Trust for such
consideration as they deem advisable;
(b) without limitation of the powers set forth in paragraph (a) above,
to invest in, purchase or otherwise acquire for such consideration as
they deem proper, in cash or other property or through the issuance of
Shares or through the issuance of notes, debentures, bonds or other
obligations of the Trust, and to hold for investment, the entire or any
participating interests in any Mortgage Loans, or interests in Real
Property, including ownership of, or participations in the ownership
of, or rights to acquire, equity interests in Real Property or in
Persons owning, developing, improving, operating or managing Real
Property, which interests may be acquired independently of or in
connection with other investment activities of the Trust and, in the
latter case, may include rights to receive additional payments based on
gross income or rental or other income from the Real Property or
improvements thereon; to invest in loans secured by the pledge or
transfer of Mortgage Loans; to develop, operate, pool, utilize, grant
production payments out of or lease or otherwise dispose of mineral,
oil and gas properties and rights;
(c) to sell, rent, lease, hire, exchange, release, partition,
assign, mortgage, pledge, hypothecate, grant security interests in,
encumber, negotiate, convey, transfer or otherwise dispose
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of any and all the Trust Estate by deeds (including deeds in lieu of
foreclosure), trust deeds, assignments, bills of sale, transfers,
leases, mortgages, financing statements, security agreements and other
instruments for any of such purposes executed and delivered for and on
behalf of the Trust or the Trustees by one or more of the Trustees or
by a duly authorized officer, employee, agent or nominee of the Trust,
provided that no disposition of a Real Estate Investment shall be
accomplished without the approval of a majority of the Trustees
(including a majority of the Independent Trustees);
(d) to issue Shares, bonds, debentures, notes or other evidences of
indebtedness which may be secured or unsecured and may be subordinated
to any indebtedness of the Trust to such Persons for such cash,
property or other consideration (including without limitation
Securities issued or created by, or interests in any Person) at such
time or times and on such terms as the Trustees may deem advisable and
to list any of the foregoing Securities issued by the Trust on any
securities exchange and to purchase or otherwise acquire, hold, cancel,
reissue, sell and transfer any of such Securities, and to cause the
instruments evidencing such Securities to bear an actual or facsimile
imprint of the seal of the Trust and to be signed by manual or
facsimile signature or signatures (and to issue such Securities,
whether or not any Person whose manual or facsimile signature shall be
imprinted thereon shall have ceased to occupy the office with respect
to which such signature was authorized), provided that, where only
facsimile signatures for the Trust are used, the instrument shall be
countersigned manually by a transfer agent, registrar or other
authentication agent. Any of such Securities of different types may be
issued in combinations or units with such restrictions on the separate
transferability thereof as the Trustees shall determine;
(e) to enter into leases or subleases of real and personal property as
lessor or lessee and to enter into contracts, obligations and other
agreements for a term, extending beyond the term of office of the
Trustees and beyond the possible termination of the Trust, or having a
lesser term;
(f) to borrow money and give negotiable or non-negotiable instruments
therefor; to guarantee, indemnify or act as surety with respect to
payment or performance of obligations of third parties; to enter
into other obligations on behalf of the Trust; and to assign, convey,
transfer, mortgage, subordinate, pledge, grant security interests in,
encumber or hypothecate the Trust Estate to secure any indebtedness of
the Trust or any other of the foregoing obligations of the Trust;
(g) to lend money, whether secured or unsecured;
(h) to create reserve funds for any purpose;
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(i) to incur and pay out of the Trust Estate any charges or expenses,
and disburse any funds of the Trust, which charges, expenses or
disbursements are, in the opinion of the Trustees, necessary or
incidental to or desirable for the carrying out of any of the purposes
of the Trust or conducting the business of the Trust, including without
limitation taxes and other governmental levies, charges and
assessments, of whatever kind or nature, imposed upon or against the
Trustees in connection with the Trust or the Trust Estate or any part
thereof, and for any of the purposes herein;
(j) to deposit funds of the Trust in banks, trust companies, savings
and loan associations and other depositories, whether or not such
deposits will draw interest, the same to be subject to withdrawal
on such terms and in such manner and by such Person or Persons
(including any one or more Trustees, officers, employees or agents) as
the Trustees may determine;
(k) to possess and exercise all the rights, powers and privileges
pertaining to the ownership of all or any Mortgages or Securities
issued or created by, or interests in, any Person, forming part of the
Trust Estate, to the same extent that an individual might, and, without
limiting the generality of the foregoing, to vote or give any consent,
request or notice, or waive any notice, either in person or by proxy or
power of attorney, with or without power of substitution, to one or
more Persons, which proxies and powers of attorney may be for meetings
or actions generally or for any particular meeting or action, and may
include the exercise of discretionary powers;
(l) to cause to be organized or assist in organizing any Person under
the laws of any jurisdiction to acquire the Trust Estate or any part or
parts thereof or to carry on any business in which the Trust shall
directly or indirectly have any interest, and to sell, rent, lease,
hire, convey, negotiate, assign, exchange or transfer the Trust Estate
or any part or parts thereof to or with any such Person or any existing
Person in exchange for the Securities thereof or otherwise, and to
merge or consolidate the Trust with or into any Person or merge or
consolidate any Person into the Trust, and to lend money to, subscribe
for the Securities of, and enter into any contracts with, any Person in
which the Trust holds or is about to acquire Securities or any other
interest;
(m) to enter into joint ventures, general or limited partnerships,
participation or agency arrangements and any other lawful combination
or associations;
(n) to elect, appoint, engage or employ such officers for the Trust as
the Trustees may determine, who may be removed or discharged at the
discretion of the Trustees, such officers to
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have such powers and duties, and to serve such terms, as may be
prescribed by the Trustees or by the By-Laws; to engage or employ any
Persons (including, without limitation, subject to the provisions of
Section 7.5 and 7.6, any Trustee, officer or agent and any Person in
which any Trustee, officer or agent is directly or indirectly
interested or with which he is directly or indirectly connected) as
agents, representatives, employees or independent contractors
(including, without limitation, real estate advisors, investment
advisors, transfer agents, registrars, underwriters, accountants,
attorneys at law, real estate agents, managers, appraisers, brokers,
architects, engineers, construction managers, general contractors or
otherwise) in one or more capacities, and to pay compensation from the
Trust for services in as many capacities as such Person may be so
engaged or employed; and to delegate any of the powers and duties of
the Trustees to any one or more Trustees, agents, representatives,
officers, employees, independent contractors or other Persons;
provided, however, that no such delegation shall be made to an
Affiliate of the Advisor, except with the approval of a majority of the
Independent Trustees;
(o) to determine whether moneys, Securities or other assets received
by the Trust shall be charged or credited to income or capital or
allocated between income and capital, including the power to amortize
or fail to amortize any part or all of any premium or discount, to
treat any part or all the profit resulting from the maturity or sale of
any asset whether purchased at a premium or at a discount, as income or
capital, or apportion the same between income and capital, to apportion
the sales price of any asset between income and capital, and to
determine in what manner any expenses or disbursements are to be borne
as between income and capital, whether or not in the absence of the
power and authority conferred by this subsection such moneys,
Securities or other assets would be regarded as income or as capital or
such expense or disbursement would be charged to income or to capital;
to treat any dividend or other distribution on any investment as income
or capital or apportion the same between income and capital; to provide
or fail to provide reserves for depreciation, amortization or
obsolescence in respect of all or any part of the Trust Estate subject
to depreciation, amortization or obsolescence in such amounts and by
such methods as they shall determine; and to determine the method or
form in which the accounts and records of the Trust shall be kept and
to change from time to time such method or form;
(p) to determine or cause to be determined from time to time the
value of all or any part of the Trust Estate and of any services,
Securities, property or other consideration to be furnished to or
acquired by the Trust, and from time to time to revalue or cause to be
revalued all or any part of the Trust
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Estate in accordance with such appraisals or other information as
are in the Trustees' sole judgment, necessary and/or satisfactory;
(q) to collect, sue for, and receive all sums of money coming due to
the Trust, and to engage in, intervene in, prosecute, join, defend,
compound, compromise, abandon or adjust, by arbitration or
otherwise, any actions, suits, proceedings, disputes, claims,
controversies, demands or other litigation relating to the Trust, the
Trust Estate or the Trust's affairs, to enter into agreements therefor,
whether or not any suit is commenced or claim accrued or asserted and,
in advance of any controversy, to enter into agreements regarding
arbitration, adjudication or settlement thereof;
(r) to renew, modify, release, compromise, extend, consolidate or
cancel, in whole or in part, any obligation to or of the Trust or
participate in any reorganization of obligors to the Trust;
(s) to purchase and pay for out of the Trust Estate insurance
contracts and policies insuring the Trust Estate against any and all
risks and insuring the Trust and/or all or any of the Trustees, the
Shareholders, officers, employees or agents against any and all
claims and liabilities of every nature asserted by any Person arising
by reason of any action alleged to have been taken or omitted by the
Trust or by the Trustees, Shareholders, officers, employees or agents;
(t) to cause legal title to any of the Trust Estate to be held by
and/or in the name of the Trustees, or except as prohibited by law by
and/or in the name of the Trust or one or more of the Trustees or any
other Person, on such terms, in such manner, with such powers in such
Person as the Trustees may determine, and with or without disclosure
that the Trust or Trustees are interested therein;
(u) to adopt a fiscal year for the Trust, and from time to time to
change such fiscal year;
(v) to adopt and use a seal (but the use of a seal shall not be
required for the execution of instruments or obligations of the Trust);
(w) to the extent permitted by law, to indemnify or enter into
agreements with respect to indemnification with any Person with which
the Trust has dealings, including without limitation any investment
advisor or independent contractor, to such extent as the Trustees shall
determine;
(x) to confess judgment against the Trust;
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(y) to discontinue the operations of the Trust;
(z) to repurchase or redeem Shares; and
(aa) to do all other such acts and things as are incident to the
foregoing, and to exercise all powers which are necessary or useful to
carry on the business of the Trust and to carry out the provisions of
this Declaration, including, without limitation, all powers of
directors of a Massachusetts business corporation.
3.3. BY-LAWS. The Trustees may make or adopt and from time to time
amend or repeal regulations (the "By-Laws") not inconsistent with law or with
this Declaration, containing provisions relating to the business of the Trust
and the conduct of its affairs and in such By-Laws may define the duties of the
officers, employees and agents of the Trust.
ARTICLE IV
ADVISOR
4.1 EMPLOYMENT OF ADVISOR. The Trustees are responsible for the
general policies of the Trust and for the general supervision of the business of
the Trust conducted by all officers, agents, employees, advisors, managers or
independent contractors of the Trust. However, the Trustees are not and shall
not be required personally to conduct the business of the Trust, and, consistent
with their ultimate responsibility as stated above, the Trustees shall have the
power to appoint, employ or contract with any Person including one or more of
themselves or any corporation, partnership or trust in which one or more of them
may be directors, officers, stockholders, partners or trustees, as the Trustees
may deem necessary or proper for the transaction of the business of the Trust.
The Trustees may therefore employ or contract with such Person (herein referred
to as the "Advisor") and, consistent with their ultimate responsibility as set
forth in this Section 4.l, the Trustees may grant or delegate such authority to
the Advisor as the Trustees may in their sole discretion deem necessary or
desirable without regard to whether such authority is normally granted or
delegated by trustees.
The Trustees shall have the power to determine the terms and
compensation of the Advisor or any other Person whom they may employ or with
whom they may contract; PROVIDED, HOWEVER, that any determination to employ or
contract with any Trustee or any Person such that a Trustee would be an
Affiliated Trustee shall be valid only if made, approved or ratified after
disclosure of such interests by the affirmative vote or written consent of a
majority of the Trustees who would continue to be Independent Trustees. The
Trustees may exercise broad discretion in allowing the Advisor to administer and
regulate the operations of the Trust, to act as agent for the Trust, to execute
documents on
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behalf of the Trustees and to make executive decisions which conform to general
policies and general principles previously established by the Trustees.
4.2. OTHER ACTIVITIES OF ADVISOR. The Advisor shall not be
required to administer the Trust as its sole and exclusive function and may have
other business interests and may engage in other activities similar or in
addition to those relating to the Trust, including the rendering of advice or
services of any kind to other investors or any other Persons (including other
REITs) and the management of other investments. The Trustees may request the
Advisor to engage in certain other activities which complement the Trust's
investments, and the Advisor may receive compensation or commissions therefor
from the Trust or other Persons.
The Advisor shall be required to use its best efforts to supervise the
operation of the Trust in a manner consistent with the investment policies and
objectives of the Trust. Neither the Advisor nor (subject to any applicable
provisions of Section 7.5) any director, trustee, officer, partner or employee
of the Advisor or of any Person which controls, is controlled by or is under
common control with the Advisor nor any such Person shall be obligated to
present any particular investment opportunities to the Trust, even if such
opportunities are of a character such that, if presented to the Trust, they
could be taken by the Trust, and, subject to the foregoing, each of them shall
be protected in taking for its own account or recommending to others any such
particular investment opportunity.
Upon request of any Trustee, the Advisor shall from time to time
promptly furnish the Trustees with such information on a confidential basis as
to any investments within the Trust's investment policies made by the Advisor
for its own account as may be provided in the advisory contract with the Advisor
in effect from time to time.
ARTICLE V
INVESTMENT POLICY AND POLICIES
WITH RESPECT TO CERTAIN
DISTRIBUTIONS TO SHAREHOLDERS
5.1 STATEMENT OF POLICY.
While the Trustees are authorized pursuant to Article III to invest the
Trust Estate in a wide variety of investments, it shall be the policy of the
Trustees to invest the major portion of the Trust Estate in health care related,
income-producing Real Estate Investments. These general objectives shall be
pursued in a manner consistent with the investment policies specified in the
remainder of this Section 5.1.
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The Trust may make secured or unsecured borrowings to make additional
Real Estate Investments and for normal working capital needs, including, without
limitation, the repair and maintenance of properties in which it has invested,
tenant improvements and leasing commissions. The Trust may make such borrowings
from third parties or, subject to approval by a majority of the Independent
Trustees, from Affiliates of the Advisor. Interest and other financing charges
or fees to be paid on loans from such Affiliates will not exceed the interest
and other financing charges or fees which would be charged by third party
financing institutions on comparable loans for the same purpose in the same
geographic area.
To the extent that the Trust Estate has assets not otherwise invested in
accordance with this Section 5.l, it shall be the policy of the Trustees to
invest such assets in interest-bearing accounts, certificates of deposit,
short-term money-market Securities, short-term government Securities,
mortgage-backed Securities guaranteed by the Government National Mortgage
Association, mortgages insured by the Federal Housing Administration or
guaranteed by the Veterans Administration, mortgage loan participations
purchased from banks or other financial institutions and other similarly secured
short-term investment Securities.
It shall be the policy of the Trustees to make investments in such
manner as to comply with the requirements of the Internal Revenue Code with
respect to the composition of the investments and the derivation of the income
for a real estate investment trust as defined in the REIT Provisions of the
Internal Revenue Code; PROVIDED, HOWEVER, that no Trustee, officer, employee or
agent of the Trust shall be liable for any act or omission resulting in the loss
of tax benefits under the Internal Revenue Code, except for that arising from
his own willful misfeasance, bad faith, gross negligence or reckless disregard
of duty.
5.2 PROHIBITED INVESTMENTS AND ACTIVITIES. The Trust shall not engage
in any investment practices or activities that would disqualify the Trust as a
real estate investment trust within the meaning of Sections 856-860 of the
Internal Revenue Code, as amended or similar provisions of any successor
statute.
5.3 APPRAISALS. If the Trust shall at any time purchase Real
Property, or interests therein, the consideration paid therefor shall generally
be based upon the fair market value which, upon the request of a majority of the
Independent Trustees, shall be determined by an appraisal by a Person who is not
an Affiliate of the Trust or the Advisor and who is, in the sole judgment of the
Trustees, properly qualified to make such a determination.
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ARTICLE VI
THE SHARES AND SHAREHOLDERS
6.1 DESCRIPTION OF SHARES. The interest of the Shareholders shall
be divided into shares of beneficial interest which shall be known collectively
as "Shares," all of which shall be validly issued, fully paid and nonassessable
by the Trust upon receipt of full consideration for which they have been issued
or without additional consideration if issued by way of share dividend or share
split. Each holder of Shares shall as a result thereof be deemed to have agreed
to and be bound by the terms of this Declaration. The Shares may be issued for
such consideration as the Trustees shall deem advisable. There shall be one
class of Shares without par value. The number of Shares which the Trust shall
have authority to issue is unlimited. The Trustees are hereby expressly
authorized at any time, and from time to time, to provide for the issuance of
Shares upon such terms and conditions and pursuant to such agreements as the
Trustees may determine.
The holders of Shares shall be entitled to receive, when and as declared
from time to time by the Trustees out of any funds legally available for the
purpose, such dividends or distributions as may be declared from time to time by
the Trustees. In the event of the termination of the Trust pursuant to Section
8.l or otherwise, or upon the distribution of its assets, the assets of the
Trust available for payment and distribution to Shareholders shall be
distributed ratably among the holders of Shares at the time outstanding in
accordance with Section 8.2. All Shares shall have equal noncumulative voting
rights at the rate of one vote per share and equal dividend, distribution,
liquidation and other rights, and shall have no preference, conversion,
exchange, sinking fund or redemption rights. No holder of Shares shall be
entitled as a matter of right to subscribe for or purchase any part of any new
or additional issue of Shares of any class whatsoever of the Trust, or of
securities convertible into any shares of any class whatsoever of the Trust,
whether now or hereafter authorized and whether issued for cash or other
consideration or by way of dividend.
6.2 CERTIFICATES. Ownership of Shares shall be evidenced by
certificates. Every Shareholder shall be entitled to receive a certificate, in
such form as the Trustees shall from time to time approve, specifying the number
of Shares held by such Shareholder. Subject to Sections 6.4 and 6.15(c) hereof,
such certificates shall be treated as negotiable and title thereto and to the
Shares represented thereby shall be transferred by delivery thereof to the same
extent in all respects as a stock certificate, and the Shares represented
thereby, of a Massachusetts business corporation. Unless otherwise determined by
the Trustees, such certificates shall be signed by the
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President or any Vice President and the Treasurer or any Assistant Treasurer
and shall be countersigned by a transfer agent, and registered by a registrar,
if any, and such signatures may be facsimile signatures in accordance with
Section 3.2(d) hereof. There shall be filed with each transfer agent a copy of
the form of certificate so approved by the Trustees, certified by the Chairman,
President or Secretary, and such form shall continue to be used unless and
until the Trustees approve some other form.
In furtherance of the provisions of Section 6.15(c) hereof, each
certificate evidencing Shares shall contain a legend imprinted thereon to the
following effect, or such other legend as the Trustees may from time to time
adopt:
" Provisions Relating to Redemption and Prohibition of Transfer of Shares."
-----------------------------------------------------------------------
"The shares represented by this certificate may be redeemed by the
Trust, and the transfer thereof may be prohibited, all upon the terms and
conditions set forth in the Declaration of Trust. The Trust will furnish a copy
of such terms and conditions to the registered holder of this certificate upon
request and without charge."
6.3 FRACTIONAL SHARES. In connection with any issuance of Shares,
the Trustees may issue fractional Shares or may provide for the issuance of
scrip including, without limitation, the time within which any such scrip must
be surrendered for exchange into full Shares and the rights, if any, of holders
of scrip upon the expiration of the time so fixed, the rights, if any, to
receive proportional distributions, and the rights, if any, to redeem scrip for
cash, or the Trustees may in their discretion, or if they see fit at the option
of each holder, provide in lieu of scrip for the adjustment of the fractions in
cash. The provisions of Section 6.2 hereof relative to certificates for Shares
shall apply so far as applicable to such scrip, except that such scrip may in
the discretion of the Trustees be signed by a transfer agent alone.
6.4 ISSUANCE OF UNITS. Notwithstanding any other provisions of this
Declaration of Trust, the Trustees may issue from time to time units consisting
of different Securities of the Trust. Any Security issued in any such unit
shall have the same characteristics and shall entitle the registered holder
thereof to the same rights as any identical Securities issued by the Trustees,
except that the Trustees may provide (and may cause a notation to be placed on
the certificate representing such unit or Securities of the Trust issued in any
such unit) that for a specified period not to exceed one year after issuance,
Securities of the Trust issued in any such unit may be transferred upon the
books of the Trust only in such unit.
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6.5 LEGAL OWNERSHIP OF TRUST ESTATE. The legal ownership of the Trust
Estate and the right to conduct the business of the Trust are vested exclusively
in the Trustees (subject to Section 3.2(t)), and the Shareholders shall have no
interest therein other than beneficial interest in the Trust conferred by their
Shares issued hereunder and they shall have no right to compel any partition,
division, dividend or distribution of the Trust or any of the Trust Estate.
6.6 SHARES DEEMED PERSONAL PROPERTY. The Shares shall be personal
property and shall confer upon the holders thereof only the interest and rights
specifically set forth or provided for in this Declaration. The death,
insolvency or incapacity of a Shareholder shall not dissolve or terminate the
Trust or affect its continuity nor give his legal representative any rights
whatsoever, whether against or in respect of other Shareholders, the Trustees or
the Trust Estate or otherwise except the sole right to demand and subject to the
provisions of this Declaration, the By-Laws and any requirements of law, to
receive a new certificate for Shares registered in the name of such legal
representative, in exchange for the certificate held by such Shareholder.
6.7 SHARE RECORD; ISSUANCE AND TRANSFERABILITY OF SHARES. Records
shall be kept by or on behalf of and under the direction of the Trustees, which
shall contain the names and addresses of the Shareholders, the number of Shares
held by them respectively, and the numbers of the certificates representing the
Shares, and in which there shall be recorded all transfers of Shares. The
Trust, the Trustees and the officers, employees and agents of the Trust shall be
entitled to deem the Persons in whose names certificates are registered on the
records of the Trust to be the absolute owners of the Shares represented thereby
for all purposes of this Trust; but nothing herein shall be deemed to preclude
the Trustees or officers, employees or agents of the Trust from inquiring as to
the actual ownership of Shares. Until a transfer is duly effected on the records
of the Trust, the Trustees shall not be affected by any notice of such transfer,
either actual or constructive.
Shares shall be transferable on the records of the Trust only by the
record holder thereof or by his agent thereunto duly authorized in writing upon
delivery to the Trustees or a transfer agent of the certificate or certificates
therefor, properly endorsed or accompanied by duly executed instruments of
transfer and accompanied by all necessary documentary stamps together with such
evidence of the genuineness of each such endorsement, execution or authorization
and of other matters as may reasonably be required by the Trustees or such
transfer agent. Upon such delivery, the transfer shall be recorded in the
records of the Trust and a new certificate for the Shares so transferred shall
be issued to the transferee and in case of a transfer of only a
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part of the Shares represented by any certificate, a new certificate for the
balance shall be issued to the transferor. Any Person becoming entitled to any
Shares in consequence of the death of a Shareholder or otherwise by operation
of law shall be recorded as the holder of such Shares and shall receive a new
certificate therefor but only upon delivery to the Trustees or a transfer agent
of instruments and other evidence required by the Trustees or the transfer
agent to demonstrate such entitlement, the existing certificate for such Shares
and such releases from applicable governmental authorities as may be required
by the Trustees or transfer agent. In case of the loss, mutilation or
destruction of any certificate for Shares, the Trustees may issue or cause to
be issued a replacement certificate on such terms and subject to such rules and
regulations as the Trustees may from time to time prescribe. Nothing in this
Declaration shall impose upon the Trustees or a transfer agent a duty or limit
their rights to inquire into adverse claims.
6.8 DIVIDENDS OR DISTRIBUTIONS TO SHAREHOLDERS. Subject to Section
6.1, the Trustees may from time to time declare and pay to Shareholders such
dividends or distributions in cash, property or assets of the Trust or
Securities issued by the Trust, out of current or accumulated income, capital,
capital gains, principal, surplus, proceeds from the increase or financing or
refinancing of Trust obligations, or from the sale of portions of the Trust
Estate or from any other source as the Trustees in their discretion shall
determine. Shareholders shall have no right to any dividend or distribution
unless and until declared by the Trustees. The Trustees shall furnish the
Shareholders with a statement in writing advising as to the source of the funds
so distributed not later than ninety (90) days after the close of the fiscal
year in which the distribution was made.
6.9 TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND REGISTRAR. The
Trustees shall have power to employ one or more transfer agents, dividend
disbursing agents and registrars (including the Advisor and/or its Affiliates)
and to authorize them on behalf of the Trust to keep records, to hold and to
disburse any dividends or distributions, and to have and perform, in respect of
all original issues and transfers of Shares, dividends and distributions and
reports and communications to Shareholders, the powers and duties usually had
and performed by transfer agents, dividend disbursing agents and registrars of a
Massachusetts business corporation.
6.10 SHAREHOLDERS' MEETINGS. There shall be an annual meeting of the
Shareholders at such time and place as shall be determined by or in the manner
prescribed in the By-Laws, at which the Trustees shall be elected and any other
proper business may be conducted. The Annual Meeting of Shareholders shall be
held after delivery to the Shareholders of the Annual Report and within six (6)
months after the end of each fiscal year. Special
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meetings of Shareholders may be called by the President or by a majority of the
Trustees or of the Independent Trustees and shall be called by the President
upon the written request of Shareholders holding in the aggregate not less than
ten percent (10%) of the total votes authorized to be cast by the outstanding
Shares of the Trust entitled to vote at such meeting, in the manner provided in
the By-Laws. If there shall be no Trustees, the officers of the Trust shall
promptly call a special meeting of the Shareholders entitled to vote for the
election of successor Trustees. Notice of any special meeting shall state the
purpose of the meeting. Upon receipt of a written request either in person or
by registered mail stating the purpose of a special meeting requested by
Shareholders, the Trust shall provide all Shareholders, within ten (10)
business days after receipt of said request, written notice of such special
meeting and the purpose of such special meeting to be held on a date not less
than twenty (20) nor more than sixty (60) days after receipt of said request,
at a time and place convenient to Shareholders.
The holders of Shares entitled to vote at the meeting representing a
majority of the total number of votes authorized to be cast by Shares then
outstanding and entitled to vote on any question present in person or by proxy
shall constitute a quorum at any such meeting for action on such question. Any
meeting may be adjourned from time to time by a majority of the votes properly
cast upon the question, whether or not a quorum is present, and except as
otherwise provided in the By-Laws the meeting may be reconvened without further
notice. At any reconvened session of the meeting at which there shall be a
quorum, any business may be transacted at the meeting as originally noticed.
Whenever any action is to be taken by the Shareholders, it shall, except
as otherwise clearly indicated in this Declaration or the By-Laws, require, and
may be effected by, the affirmative vote of the holders of a majority of the
Shares present or represented and entitled to vote and voting on such matter,
provided that such majority shall be at least a majority of the number of Shares
required to constitute a quorum for action on such matter. Any election by
Shareholders shall be determined by a plurality of the votes cast by the
Shareholders entitled to vote at the election. No ballot shall be required for
such election unless requested by a Shareholder present or represented at the
meeting and entitled to vote in the election.
Whenever Shareholders are required or permitted to take any action
(unless a vote at a meeting is specifically required as in Section 8.l and 8.3),
such action may be taken without a meeting by written consents setting forth the
action so taken, signed by the holders of a majority (or such higher percentage
as may be specified elsewhere in this Declaration) of the
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outstanding Shares that would be entitled to vote thereon at a meeting.
The Shareholders shall be entitled, to the same extent as the
shareholders in a Massachusetts business corporation, to determine by vote
whether a court action, proceeding or claim should be brought or maintained
derivatively or as a class action on behalf of the Trust or its Shareholders.
Except with respect to matters on which a Shareholders' vote shall be required
for or shall determine action of the Trustees as expressly set forth in this
Declaration, no action taken by the Shareholders at any meeting shall in any way
bind the Trustees.
6.11 PROXIES. Whenever the vote or consent of a Shareholder entitled
to vote is required or permitted under this Declaration, such vote or consent
may be given either directly by such Shareholder or by a proxy in the form
prescribed in the By-Laws. The Trustees may solicit such proxies from the
Shareholders or any of them entitled to vote in any matter requiring or
permitting the Shareholders' vote or consent. No proxy for any meeting of
Shareholders entitled to vote shall be effective unless such proxy shall have
been placed on file with such officer of the Trust as the Trustees shall have
designated for such purposes for verification prior to such meeting.
6.12 REPORTS TO SHAREHOLDERS. Not later than one hundred fifty (150)
days after the close of each fiscal year of the Trust, the Trustees shall mail
or deliver a report of the business and operations of the Trust during such
fiscal year to the Shareholders, which report shall constitute the accounting of
the Trustees for such fiscal year. The report (the "Annual Report") shall be in
such form and have such content as the Trustees deem proper. The Annual Report
shall include an audited statement indicating the financial position of the
Trust and a statement indicating the results of its operations, each prepared in
accordance with generally accepted accounting principles. Such financial
statements shall be accompanied by the report of an independent certified public
accountant thereon. A manually signed copy of the accountant's report shall be
filed with the Trustees. The Independent Trustees shall take reasonable steps
to carry out the foregoing.
6.13 FIXING RECORD DATE. The By-Laws may provide for fixing or, in
the absence of such provision, the Trustees may fix, in advance, a date as the
record date for determining the Shareholders entitled to notice of or to vote at
any meeting of Shareholders or to express consent to any proposal without a
meeting or for the purpose of determining Shareholders entitled to receive
payment of any dividend or distribution (whether before or after termination of
the Trust) or any Annual Report or other communication from the Trustees, or for
any other purpose. Except as provided in Section 6.10, the record date so fixed
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shall be not less than five (5) days nor more than sixty (60) days prior to the
date of the meeting or event for the purpose of which it is fixed.
6.14 NOTICE TO SHAREHOLDERS. Any notice of meeting or other notice,
communication or report to any Shareholder shall be deemed duly delivered to
such Shareholder when such notice, communication or report is deposited, with
postage thereon prepaid, in the United States mail, addressed to such
Shareholder at his address as it appears on the records of the Trust or is
delivered in person to such Shareholder.
6.15 SHAREHOLDERS DISCLOSURES; TRUSTEES RIGHT TO REFUSE TO TRANSFER
SHARES; LIMITATION ON HOLDINGS; REDEMPTION OF SHARES.
(a) The Shareholders shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of the
Shares as the Trustees deem necessary or appropriate to comply with the REIT
Provisions of the Internal Revenue Code or to comply with the requirements of
any taxing authority or governmental agency.
(b) Whenever it is deemed by them to be reasonably necessary to protect
the status of the Trust as a REIT, the Trustees may require a statement or
affidavit from each Shareholder or proposed transferee of Shares setting forth
the number of Shares already owned by him and any related Person or Affiliate
specified in the form prescribed by the Trustees for that purpose. If, in the
opinion of the Trustees, which shall be conclusive upon any proposed transferee
of Shares, any proposed transfer would jeopardize the status of the Trust as a
REIT, the Trustees shall have the right, but not the duty, to refuse to permit
such transfer.
(c) The Trustees, by notice to the holder thereof, may redeem any or
all Shares which have been transferred pursuant to a transfer which, in the
opinion of the Trustees, would jeopardize the status of the Trust as a REIT.
Without limiting the generality of the foregoing, if the Trustees shall, at any
time and in good faith, be of the opinion that direct or indirect ownership of
at least 9.9% or more of the Shares has or may become concentrated in the hands
of one beneficial owner (as defined on October 1, 1982 in Rule 13d-3 under the
Securities Exchange Act of 1934), the Trustees, shall have the power (i) by lot
or other means deemed equitable by them to call for the purchase from any
Shareholder a number of Shares sufficient, in the opinion of the Trustees, to
maintain or bring the direct or indirect ownership of Shares of such beneficial
owner to no more than 9.9% of the outstanding Shares, and (ii) to refuse to
transfer or issue Shares to any Person whose acquisition of such Shares would,
in the opinion of the Trustees, result in the direct or indirect ownership of
more than 9.9% of the outstanding
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Shares. The purchase price for any Shares shall be equal to the fair market
value of the Shares reflected in the closing sale price for the Shares, if then
listed on a national securities exchange, or the average of the closing sales
prices for the Shares if then listed on more than one national securities
exchange, or if the Shares are not then listed on a national securities
exchange, the latest bid quotation for the Shares if then traded
over-the-counter, on the last business day immediately preceding the day on
which notices of such acquisition are sent, or, if no such closing sales prices
or quotations are available, then the purchase price shall be equal to the net
asset value of such Shares as determined by the Trustees in accordance with the
provisions of applicable law. Payment of the purchase price shall be made in
cash by the Trust at such time in such manner as may be determined by the
Trustees. From and after the date fixed for purchase by the Trustees, the
holder of any Shares so called for purchase shall cease to be entitled to
distributions, voting rights and other benefits with respect to such Shares,
excepting only the right to payment of the purchase price fixed as aforesaid.
Any transfer of Shares, options, warrants or other securities convertible into
Shares that would create a beneficial owner of more than 9.9% of the
outstanding Shares shall be deemed void ab initio and the intended transferee
shall be deemed never to have an interest therein. If the foregoing provision
is determined to be void or invalid by virtue of any legal decision, statute,
rule or regulation, then the transferee of such shares, options, warrants or
other securities convertible into Shares shall be deemed, at the option of the
Trust to have acted as agent on behalf of the Trust in acquiring such Shares
and to hold such Shares on behalf of the Trust.
Notwithstanding any other provision in this Declaration of Trust or the
By-Laws of the Trust, the foregoing provision may not be amended or repealed
without the affirmative vote of 90% of the Shares entitled to vote.
(d) Notwithstanding any other provision of this Declaration of Trust to
the contrary, any purported acquisition of Shares of the Trust which would
result in the disqualification of the Trust as a REIT shall be null and void.
(e) Nothing contained in this Section 6.15 or in any other provision of
this Declaration of Trust shall limit the authority of the Trustees to take such
other action as they deem necessary or advisable to protect the Trust and the
interests of the Shareholders by preservation of the Trust status as a REIT.
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ARTICLE VII
LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS,
EMPLOYEES AND AGENTS AND OTHER MATTERS
7.1 EXCULPATION OF TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS. (a)
No Trustee, officer, employee, agent or Affiliate of the Trust shall be liable
to the Trust, to any Shareholder or to any other Person for any loss suffered by
the Trust which arises out of any action or inaction of the Trustee, officer,
employee, agent or Affiliate of the Trust if such Trustee, officer, employee,
agent or Affiliate of the Trust, in good faith, determined that such course of
conduct was in the best interests of the Trust and such course of conduct did
not constitute gross negligence or willful misconduct of such Trustee, officer,
employee, agent or Affiliate of the Trust.
(b) No Trustee shall be personally liable to the Trust or its
Shareholders for monetary damages for breach of fiduciary duty by such Trustee
as a Trustee notwithstanding any provision contained in Section 7.1(a) hereof or
any provision of law imposing such liability, except to the extent provided by
applicable law for liability (i) for breach of the Trustee's duty of loyalty to
the Trust or its Shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law, or (iii) for
any transaction from which the Trustee derived an improper personal benefit.
Liability of a Trustee for matters described in clauses (i), (ii) and (iii) in
the preceding sentence shall be determined pursuant to Section 7.1(a) hereof.
7.2 LIMITATION OF LIABILITY OF SHAREHOLDERS, TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS. The Trustees, officers, employees and agents of the Trust
in incurring any debts, liabilities or obligations or in taking or omitting any
other actions for or in connection with the Trust are, and shall be deemed to
be, acting as Trustees, officers, employees or agents of the Trust and not in
their own individual capacities. The Trustees shall have no power to bind the
Shareholders personally, or to call upon them for the payment of any money or
any assessment whatsoever other than such sums as the Shareholders may at any
time personally agree to pay for new Shares to be acquired from the Trust. No
Shareholder and, except to the extent provided in Section 7.l, no Trustee,
officer, employee or agent shall be liable for (a) any debt, liability or
obligation of any kind of, or with respect to, the Trust or (b) any claim,
demand, judgment or decree against the Trust (in any such case in tort, contract
or otherwise) arising out of any action taken or omitted for or on behalf of the
Trust and the Trust shall be solely liable therefor and resort shall be had
solely to the Trust Estate for the payment or performance thereof, and no
Shareholder and, except as aforesaid, no Trustee, officer, employee or agent
shall be subject to any personal liability
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whatsoever, in tort, contract or otherwise, to any other Person or Persons in
connection with the Trust Estate or the affairs of the Trust (or any actions
taken or omitted for or on behalf of the Trust), and all such other Persons
shall look solely to the Trust Estate for satisfaction of claims of any nature
arising in connection with the Trust Estate or the affairs of the Trust (or any
action taken or omitted for or on behalf of the Trust). Each Shareholder shall
be entitled to pro rata indemnity from the Trust Estate if, contrary to the
provisions hereof, such Shareholder shall be held to any personal liability.
7.3 EXPRESS EXCULPATORY CLAUSES AND INSTRUMENTS. Any written
instrument creating an obligation of the Trust shall include a reference to this
Declaration and provide that neither the Shareholders nor the Trustees nor
officers, employees or agents of the Trust shall be liable thereunder and that
all Persons shall look solely to the Trust Estate for the payment of any claim
thereunder or for the performance thereof; however, the omission of such
provision from any such instrument shall not render the Shareholders or any
Trustee, officer, employee or agent of the Trust liable nor shall the Trustees
or any officer, employee or agent of the Trust be liable to anyone for such
omission.
7.4 INDEMNIFICATION AND REIMBURSEMENT OF TRUSTEES, OFFICERS, EMPLOYEES
AND AGENTS. The present and former Trustees, officers, employees, agents and
Affiliates of the Trust and the present and former directors, officers,
employees, agents and Affiliates of the Advisor who are engaged in business by,
or on behalf of, the Trust (or any person who serves or served, at the Trust's
request, as a director, officer, employer or agent of another organization or
who serves or served at the Trust's request in any capacity with respect to any
employee benefit plan) shall be indemnified by the Trust against any losses,
judgments, liabilities, expenses and amounts paid in settlement of any claims
sustained by them in connection with service in such capacity, PROVIDED that
such losses, judgments, liabilities, expenses and amounts paid in settlement
were not the result of gross negligence or willful misconduct on the part of
such Persons, and PROVIDED FURTHER, that such Person gives prompt notice
thereof, executes such documents and takes such action as will permit the Trust
to conduct the defense or settlement thereof and cooperate therein. In the
event of a settlement approved by the Trustees of any such claim, alleged
liability, action, suit or proceeding, indemnification and reimbursement shall
be provided except as to such matters covered by the settlement for which the
Trust receives advice of its independent counsel (which advice the Trust is
obligated to request) that such matters, if adjudicated, would likely be
adjudicated to have arisen out of or been based upon such Person's gross
negligence or willful misconduct. Such rights of indemnification and
reimbursement shall be satisfied only out of the Trust Estate.
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The Trust shall not incur the cost of that portion of any insurance, other than
public liability insurance, which insures any party against any liability the
indemnification of which is herein prohibited. The rights accruing to any
Person under these provisions shall not exclude any other right to which he may
be lawfully entitled, nor shall anything contained herein restrict such
Person's right to contribution as may be available under applicable law. The
Trust may provide advances to any such Person for legal expenses and other
costs related to a claim which may be indemnified hereunder, provided that such
Person undertakes to repay the advanced funds to the Trust in cases where it is
determined that such Person was not entitled to such indemnification.
Any action taken by or conduct on the part of a Trustee, officer,
employee or agent of the Trust in conformity with or in good faith reliance upon
the provisions of Section 7.5 shall not, for the purposes of this Trust
(including without limitation Sections 7.l, 7.2 and 7.3 and this Section 7.4)
constitute negligence or misconduct.
7.5 RIGHT OF TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS TO OWN
SHARES OR OTHER PROPERTY AND TO ENGAGE IN OTHER BUSINESS. Any Trustee or
officer, employee or agent of the Trust may acquire, own, hold and dispose of
Shares in the Trust, for his individual account, and may exercise all rights of
a Shareholder to the same extent and in the same manner as if he were not a
Trustee or officer, employee or agent of the Trust. Any Trustee or officer,
employee or agent of the Trust may, in his personal capacity or in the capacity
of trustee, officer, director, stockholder, partner, member, adviser or employee
of any Person or otherwise, have business interests and engage in business
activities similar to or in addition to those relating to the Trust, which
interests and activities may be similar to and competitive with those of the
Trust and may include the acquisition, syndication, holding, management,
development, operation or disposition, for his own account or for the account of
such Person or others, of interests in Mortgages, interests in Real Property, or
interests in Persons engaged in the real estate business. Each Trustee,
officer, employee and agent of the Trust shall be free of any obligation to
present to the Trust any investment opportunity which comes to him in any
capacity other than solely as Trustee, officer, employee or agent of the Trust,
even if such opportunity is of a character which, if presented to the Trust,
could be taken by the Trust; PROVIDED, HOWEVER, that the provisions of this
sentence shall not extend, with respect to interests in Real Property which
could be acquired by the Trust consistent with its then existing policies, to
any of such Trustees or agents who are Affiliated Trustees or would be
Affiliated Trustees were they Trustees rather than agents, or to any officer or
employee of the Trust or (at a time when there is no Advisor or other person
providing an investment program for the Trust) to any Trustee of
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the Trust, who in failing to present such opportunity is not acting as a
trustee, officer, director, stockholder, partner, member, adviser or employee
of any Person other than the Trust but is acting for his own personal account.
Subject to the provisions of Article IV and Section 7.6, any Trustee or
officer, employee or agent of the Trust may be interested as trustee, officer,
director, stockholder, partner, member, adviser or employee of, or otherwise
have a direct or indirect interest in, any Person who may be engaged to render
advice or services to the Trust, and may receive compensation from such Person
as well as compensation as Trustee, officer, employee or agent or otherwise
hereunder.
7.6 TRANSACTIONS BETWEEN TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS AND
THE TRUST. Except as otherwise provided by this Declaration, and in the absence
of fraud, a contract, act or other transaction, between the Trust and any other
Person, or in which the Trust is interested, shall be valid and no Trustee,
officer, employee or agent of the Trust shall have any liability as a result of
entering into any such contract, act or transaction, even though (a) one or more
Trustees, officers, employees or agents are directly or indirectly interested in
or connected with, or are trustees, partners, directors, employees, officers, or
agents of such other Person, or (b) one or more of the Trustees, officers,
employees or agents of the Trust, individually or jointly with others, is a
party or are parties to, or directly or indirectly interested in, or connected
with, such contract, act or transaction, provided that (i) such interest or
connection is disclosed or known to the Trustees and thereafter the Trustees
authorize or ratify such contract, act or other transaction by affirmative vote
of a majority of the Trustees who are not so interested or (ii) such interest or
connection is disclosed or known to the Shareholders, and thereafter such
contract, act or transaction is approved by Shareholders holding a majority of
the Shares, then outstanding and entitled to vote thereon or (iii) such
contract, act or transaction is fair as to the Trust as of the time it is
authorized, approved or ratified by the Trustees or the Shareholders.
This Section 7.6 shall not prevent any sale of Shares issued by the
Trust for the public offering thereof in accordance with a registration
statement filed with the Securities and Exchange Commission under the Securities
Act of l933. The Trustees are not restricted by this Section 7.6 from forming a
corporation, partnership, trust or other business association owned by any
Trustee, officer, employee or agent or by their nominees for the purpose of
holding title to property of the Trust or managing property of the Trust,
provided that the Trustees make a determination that the creation of such entity
for such purpose is in the best interest of the Trust.
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No Trustee, officer or Advisor of the Trust or any Affiliate of such
Person shall, directly or indirectly, acquire any asset for the purpose of
reselling it to the Trust except to purchase property to be acquired by the
Trust upon completion of financing arrangements by the Trust.
7.7 RESTRICTION OF DUTIES AND LIABILITIES. The Shareholders,
Trustees, officers, employees and agents shall in no event have any greater
duties or liabilities than those established by this Declaration of Trust or, in
cases as to which such duties or liabilities are not so established, than those
of the shareholders, directors, officers, employees and agents of a
Massachusetts business corporation in effect from time to time.
7.8 PERSONS DEALING WITH TRUSTEES, OFFICERS, EMPLOYEES OR AGENTS.
Any act of the Trustees, officers, employees or agents purporting to be done in
their capacity as such, shall, as to any Persons dealing with such Trustees,
officers, employees or agents, be conclusively deemed to be within the purposes
of this Trust and within the powers of the Trustees, officers, employees or
agents. No Person dealing with the Trustees or any of them, or with the
officers, employees or agents of the Trust, shall be bound to see to the
application of any funds or property passing into their hands or control. The
receipt of the Trustees or any of them, or of authorized officers, employees or
agents of the Trust, for moneys or other consideration, shall be binding upon
the Trust.
7.9 RELIANCE. The Trustees and the officers, employees and agents of
the Trust may consult with counsel and the advice or opinion of such counsel
shall be prima facie evidence of good faith and lack of negligence of all the
Trustees and the officers, employees and agents of the Trust in respect of any
action taken or suffered by them in reliance on or in accordance with such
advice or opinion. In discharging their duties, Trustees or officers, employees
or agents of the Trust, when acting in good faith, may rely upon financial
statements of the Trust represented to them to fairly present the financial
position or results of operations of the Trust by the President of the Trust or
the officer of the Trust having charge of its books of account, or stated in a
written report by an independent certified public accountant fairly to present
the financial position or results of operations of the Trust. The Trustees and
the officers, employees and agents of the Trust may rely, and shall be
personally protected in acting, upon any instrument or other document believed
by them in good faith to be genuine.
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ARTICLE VIII
DURATION, AMENDMENT AND TERMINATION OF TRUST
8.1 DURATION OF TRUST.
The Trust shall continue without limitation of time, PROVIDED, HOWEVER,
that the Trust may be terminated at any time by the affirmative vote at a
meeting of Shareholders of the holders of Shares representing a majority, of the
total number of votes authorized to be cast by Shares, then outstanding and
entitled to vote thereon.
8.2 TERMINATION OF TRUST.
(a) Upon the termination of the Trust:
(i) the Trust shall carry on no business except for the
purposes of winding up its affairs;
(ii) the Trustees shall proceed to wind up the affairs of the
Trust and all the powers of the Trustees under this
Declaration shall continue until the affairs of the Trust
shall have been wound up, including the power to fulfill or
discharge the contracts of the Trust, collect its assets,
sell, convey, assign, exchange, transfer or otherwise
dispose of all or any part of the remaining Trust Estate to
one or more persons at public or private sale for
consideration which may consist in whole or in part of
cash, Securities or other property of any kind, discharge
or pay its liabilities, and do all other acts appropriate
to liquidate its business; and
(iii) after paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases,
indemnities and refunding agreements, as they deem
necessary for their protection, the Trustees may distribute
the remaining Trust Estate, in cash or, with the consent of
at least 90% of the Shareholders not affiliated with the
Advisor, in kind or partly each, among the Shareholders
according to their respective rights.
(b) After termination of the Trust and distribution to the
Shareholders as herein provided, the Trustees shall execute and lodge
among the records of the Trust an instrument in writing setting
forth the fact of such termination and such distribution, a copy of
which instrument shall be filed with the Secretary of State of the
Commonwealth of Massachusetts,
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and the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder and the rights and
interests of all Shareholders shall thereupon cease.
8.3 AMENDMENT PROCEDURE. This Declaration may be amended (except as
to the limitations of personal liability of the Shareholders, Trustees,
officers, employees and agents of the Trust and the prohibition of assessments
upon Shareholders set forth in Section 7.2) at a meeting of Shareholders by
holders of Shares representing a majority (or, with respect to (i) amendments to
Article V, (ii) amendments to the proviso to Section 8.l, and (iii) amendments
to this Section 8.3 that would reduce the percentage vote required to approve
any amendments to this Declaration, three quarters) of the total number of votes
authorized to be cast by Shares, then outstanding and entitled to vote thereon.
Two-thirds of the Trustees may, after fifteen (l5) days written notice to the
Shareholders, also amend this Declaration without the vote or consent of
Shareholders if they deem it necessary to conform this Declaration to the
requirements of (i) the REIT Provisions of the Internal Revenue Code, (ii) other
applicable federal laws or regulations or (iii) any state securities or "blue
sky" laws or requirements of administrative agencies thereunder in connection
with any public offering of Shares, but the Trustees shall not be liable for
failing so to do. Actions by the Trustees pursuant to Section 6.1 or Section
9.6(a) that result in amending this Declaration shall be effected without vote
or consent of Shareholders.
8.4 AMENDMENTS EFFECTIVE. Any amendment pursuant to any Section of
this Declaration of Trust shall not become effective until a certification in
recordable form signed by a majority of the Trustees setting forth an amendment
and reciting that it was duly adopted as aforesaid or a copy of this
Declaration, as amended, in recordable form, and executed by a majority of the
Trustees, is filed with the Secretary of State of the Commonwealth of
Massachusetts.
8.5 TRANSFER TO SUCCESSOR. The Trustees, with the approval a majority
of the Trustees (including a majority of the Independent Trustees) and the
affirmative vote or written consent, approving a plan for this purpose, of the
holders of Shares representing a majority of the total number of votes
authorized to be cast by Shares then outstanding and entitled to vote thereon,
shall (a) cause the organization of a corporation, association, trust or other
organization to take over the Trust Estate and carry on the affairs of the
Trust, (b) merge the Trust into, or sell, convey and transfer the Trust Estate
to, any such corporation, association, trust or organization in exchange for
Securities thereof, or beneficial interests therein, and the assumption by such
transferee of the liabilities of the Trust and (c) thereupon terminate this
Declaration and deliver such shares, Securities or
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beneficial interests among the Shareholders in accordance with such plan.
8.6 SALE OF ASSETS, MERGER. The Trustees, with the approval of a
majority of the Trustees (and, in the case of a merger, a majority of the
Independent Trustees) and the affirmative vote or written consent of the holders
of Shares representing a majority of the total number of votes authorized to be
cast by Shares then outstanding and entitled to vote thereon may: (a) sell,
lease or exchange all or substantially all of the property and assets of the
Trust or (b) merge the Trust into any corporation, association, trust or
organization.
ARTICLE IX
MISCELLANEOUS
9.1 APPLICABLE LAW. This Declaration and the rights of all parties
and the construction and effect of every provision hereof shall be subject to
and construed according to the statutes and laws of the Commonwealth of
Massachusetts.
9.2 INDEX AND HEADINGS FOR REFERENCE ONLY. The index and headings
preceding the text, articles and sections hereof have been inserted for
convenience and reference only and shall not be construed to affect the meaning,
construction or effect of this Declaration.
9.3 SUCCESSORS IN INTEREST. This Declaration and the By-Laws shall be
binding upon and inure to the benefit of the undersigned Trustees and their
successors, assigns, heirs, distributees and legal representatives, and every
Shareholder and his successors, assigns, heirs, distributees and legal
representatives.
9.4 INSPECTION OF RECORDS. Trust records shall be available for
inspection by Shareholders at the same time and in the same manner and to the
extent that comparable records of a Massachusetts business corporation would be
available for inspection by shareholders, under the laws of the Commonwealth of
Massachusetts. Except as specifically provided for in this Declaration,
Shareholders shall have no greater right than shareholders of a Massachusetts
business corporation to require financial or other information from the Trust,
Trustees or officers of the Trust. Any federal or state securities
administration or other similar authority shall have the right, at reasonable
times during business hours and for proper purposes, to inspect the books and
records of the Trust.
9.5 COUNTERPARTS. This Declaration may be simultaneously executed in
several counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together
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shall constitute one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
9.6 PROVISIONS OF THE TRUST IN CONFLICT WITH LAW OR REGULATIONS;
SEVERABILITY.
(a) The provisions of this Declaration are severable, and if the
Trustees shall determine, with the advice of counsel, that any one or more of
such provisions (the "Conflicting Provisions") are in conflict with the REIT
Provisions of the Internal Revenue Code, or with other applicable federal laws
and regulations, the Conflicting Provisions shall be deemed never to have
constituted a part of the Declaration; PROVIDED, HOWEVER, that such
determination by the Trustees shall not affect or impair any of the remaining
provisions of this Declaration or render invalid or improper any action taken or
omitted (including but not limited to the election of Trustees) prior to such
determination. A certification in recordable form signed by a majority of the
Trustees setting forth any such determination and reciting that it was duly
adopted by the Trustees, or a copy of this Declaration, with the Conflicting
Provisions removed pursuant to such a determination, in recordable form, signed
by a majority of the Trustees, shall be conclusive evidence of such
determination when filed with the Secretary of State of the Commonwealth of
Massachusetts. The Trustees shall not be liable for failure to make any
determination under this Section 9.6(a). Nothing in this Section 9.6(a) shall in
any way limit or affect the right of the Trustees to amend this Declaration as
provided in Section 8.3.
(b) If any provision of this Declaration shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other provision of this Declaration, and this Declaration shall be carried
out as if any such invalid or unenforceable provision were not contained herein.
9.7 CERTIFICATIONS. The following certifications shall be final
and conclusive as to any Persons dealing with the Trust:
(a) a certification of a vacancy among the Trustees by reason of
resignation, removal, increase in the number of Trustees, incapacity, death or
otherwise, when made in writing by a majority of the remaining Trustees;
(b) a certification as to the individuals holding office as Trustees or
officers at any particular time, when made in writing by any one of the
president, vice president, treasurer, assistant treasurer, secretary or
assistant secretary of the Trust or by any Trustee;
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(c) a certification that a copy of this Declaration or of the By-Laws
is a true and correct copy thereof as then in force, when made in writing by any
one of the president, vice president, treasurer, assistant treasurer, secretary
or assistant secretary of the Trust or by any Trustee;
(d) the certifications referred to in Sections 2.7, 8.4 and 9.6(a); and
(e) a certification as to any actions by Trustees, other than the
above, when made in writing by any one of the president, vice president,
treasurer, assistant treasurer, secretary or assistant secretary of the Trust or
by any Trustee.
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IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ HUGH L. CAREY
--------------------------------
Hugh L. Carey
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Hugh L.
Carey, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
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IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ ROBERT CATALDO
--------------------------------
Robert Cataldo
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Robert
Cataldo, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-37-
<PAGE> 42
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ ABRAHAM D. GOSMAN
--------------------------------
Abraham D. Gosman
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Abraham
D. Gosman, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-38-
<PAGE> 43
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ PHILIP L. LOWE
--------------------------------
Philip L. Lowe
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Philip L.
Lowe, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-39-
<PAGE> 44
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
________________________________
Thomas J. Magovern
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF , 1994
SS:
COUNTY OF
On this day of , 1994, before me personally appeared Thomas
J. Magovern, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Notarial Seal ___________________________________
Notary Public
My commission expires:
-40-
<PAGE> 45
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
________________________________
Gerald Tsai, Jr.
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF , 1994
SS:
COUNTY OF
On this day of , 1994, before me personally appeared Gerald
Tsai, Jr., to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Notarial Seal ___________________________________
Notary Public
My commission expires:
-41-
<PAGE> 46
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ EDWARD W. BROOKE
--------------------------------
Edward W. Brooke
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Edward W.
Brooke, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-42-
<PAGE> 47
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ FREDERICK W. ZUCKERMAN
--------------------------------
Frederick W. Zuckerman
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared Frederick
W. Zuckerman, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-43-
<PAGE> 48
IN WITNESS WHEREOF, the undersigned has signed these presents all on the
day and year first above written.
/S/ DAVID F. BENSON
--------------------------------
David F. Benson
As Trustee, and not individually
ACKNOWLEDGMENT
STATE OF MASSACHUSETTS JULY 19, 1994
SS:
COUNTY OF NORFOLK
On this 19TH day of JULY, 1994, before me personally appeared David F.
Benson, to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
Notarial Seal /S/ MICHAEL J. BOHNEN
--------------------------------
Notary Public
My commission expires: 5/4/01
-44-
