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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): December 31, 1997
LEXINGTON CORPORATE PROPERTIES TRUST
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(Exact Name of Registrant as specified in its charter)
MARYLAND 1-12386 13-3717318
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
355 LEXINGTON AVENUE, NEW YORK, NEW YORK 10017
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(212) 692-7260
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LEXINGTON CORPORATE PROPERTIES, INC.
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On December 31, 1997, Lexington Corporate Properties, Inc. (the
"Corporation"), a Maryland corporation, was merged with and into Lexington
Corporate Properties Trust (the "Trust"), a Maryland real estate investment
trust (the "Merger"), pursuant to an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of December 31, 1997 by and between the
Corporation and the Trust. Under the Merger Agreement, each share of
Lexington Corporate Properties, Inc., $.0001 par value, was converted into
the right to receive one share of beneficial interest in the Trust, $.0001
par value. The Trust is the surviving entity of the Merger.
Item 7. Financial Statements, Pro Forma Information and Exhibits.
(c) Exhibits
2.1 Agreement and Plan of Merger dated December 31, 1997
3.1 Declaration of Trust of Lexington Corporate Properties Trust
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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.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ ANTONIA TRIGIANI
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Antonia Trigiani
Chief Financial Officer
Date: January 15, 1997
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Exhibit Index
Exhibit 2.1 Agreement and Plan of Merger dated December 31, 1997 between
Lexington Corporate Properties, Inc. and Lexington Corporate
Properties Trust.
Exhibit 3.1 Declaration of Trust.
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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of
December 31, 1997 is entered into by and between Lexington Corporate Properties,
Inc., a Maryland corporation ("Corporate"), and Lexington Corporate Properties
Trust, a Maryland statutory real estate trust (the "MDREIT").
WHEREAS, the respective Boards of Directors of Corporate and MDREIT
have approved the tax-free merger of Corporate with and into MDREIT (the
"Merger"), upon the terms and subject to the conditions set forth herein, as a
result of which Corporate will merge with MDREIT and the shareholders of
Corporate will be entitled to receive the consideration provided in this
Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be
derived from this Agreement and of the representations, warranties, covenants
and agreements hereinafter contained, Corporate and MDREIT agree as follows:
ARTICLE I
The Merger
SECTION 1.01. Surviving Entity. In accordance with the provisions of
this Agreement and applicable Maryland law, at the Effective Date (as defined in
Section 1.06), Corporate shall be merged with and into MDREIT, and MDREIT shall
be the surviving entity in the Merger (hereinafter sometimes called the
"Surviving Entity"). At the Effective Date, the separate existence of Corporate
shall cease.
SECTION 1.02. Declaration of Trust. As of the Effective Date, the
Declaration of Trust of MDREIT immediately prior to the Effective Date shall be
the Declaration of Trust of the Surviving Entity, until thereafter amended as
provided by law or in such Declaration of Trust.
SECTION 1.03. By-laws. The By-laws of MDREIT as in effect at the
Effective Date shall be the By-laws of the Surviving Entity, until thereafter
amended or repealed as provided by law.
SECTION 1.04. Trustees. The directors of Corporate at the Effective
Date shall, from and after the Effective Date, be the trustees of the Surviving
Entity and shall hold office from the Effective Date until their respective
successors are duly elected or appointed and qualified in the manner provided in
the Declaration of Trust and By-laws of the Surviving Entity, or as otherwise
provided by law.
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SECTION 1.05. Officers. The officers of Corporate at the Effective
Date shall, from and after the Effective Date, be the officers of the Surviving
Entity and shall hold office from the Effective Date, be the officers of the
Surviving Entity and shall hold office from the Effective Date until their
respective successors are duly elected or appointed and qualified in the manner
provided in the Declaration of Trust and By-laws of the Surviving Entity, or as
otherwise provided by law.
SECTION 1.06. Effective Date. The Merger shall become effective at
the time of filing of the Articles of Merger with the Secretary of State of the
State of Maryland in accordance with the provisions of applicable Maryland law.
The Articles of Merger shall be filed with the Secretary of State of the State
of Maryland. The date when the Merger becomes effective is herein referred to as
the "Effective Date".
SECTION 1.07. Additional Actions. If, at any time after the
Effective Date, the Surviving Entity determines that any deeds, bills of sale,
assignments, assurances or any other acts or things are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Entity, its right, title or interest in, to or under any of the rights,
properties or assets of Corporate acquired or to be acquired by reason of, or as
a result of, the Merger, or (b) otherwise to carry out the purposes of this
Agreement, the Surviving Entity and its proper officers and directors shall be
authorized to execute and delivery, in the name and on behalf of Corporate, all
such deeds, bills of sale, assignments and assurances and to do, in the name and
on behalf of Corporate, all such other acts and things necessary or desirable to
vest, perfect or confirm any and all right, title or interest in, to or under
such rights, properties or assets in the Surviving Entity or otherwise to carry
out the purposes of this Agreement.
SECTION 1.08. Conversion of Company Common Stock and Preferred
Stock.
(i) Each share of Corporate's common stock, par value $0.0001 per
share (the "Company Common Stock"), and each share of Class A Senior Cumulative
Convertible Preferred Stock, par value $0.0001 per share (the "Company Preferred
Stock"), actually issues and outstanding at the Effective Date shall, by virtue
of the Merger and without any action on the part of the holder thereof, (A) in
the case of Company Common Stock be converted into one validly issued, fully
paid and non-assessable share of the common stock, par value $0.0001 per share,
of MDREIT (the "MDREIT Common Stock") and (B) in the case of Company Preferred
Stock, be converted into one validly issued, fully paid and non-assessable share
of Class A Senior Cumulative Convertible Preferred Stock, par value $0.0001 per
share, of MDREIT (the "MDREIT Preferred Stock"). Certificates representing
shares of Company Common Stock and Company Preferred Stock before the Merger
will represent MDREIT Common Stock and MDREIT Preferred Stock, respectively,
after the Merger and it will not be
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necessary for stockholders of Corporate to surrender or exchange their existing
stock certificates for new stock certificates.
(ii) Each share of Company Common Stock held by Corporate at the
Effective Date shall, by virtue of the Merger, be cancelled without payment of
any consideration therefor and without any conversion thereof.
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IN WITNESS WHEREOF, each of Corporate and MDREIT has executed this
Agreement, or has caused this Agreement to be executed on its behalf by a
representative duly authorized, all as of the day and year first above written.
LEXINGTON CORPORATE
PROPERTIES, INC.
By: /s/ T. WILSON EGLIN
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Name: T. Wilson Eglin
Title: President
LEXINGTON CORPORATE
PROPERTIES TRUST
By: /s/ T. WILSON EGLIN
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Name: T. Wilson Eglin
Title: President
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Exhibit 3.1
LEXINGTON CORPORATE PROPERTIES TRUST
DECLARATION OF TRUST
LEXINGTON CORPORATE PROPERTIES TRUST, a Maryland statutory real
estate investment trust, having its principal office in Baltimore City, Maryland
(which is hereinafter called the "Trust"), hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
FIRST: The Trust shall be a real estate investment trust within the
meaning of Title 8 of the Corporations and Associations Article of the Annotated
Code of Maryland. 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
Internal Revenue Code); nor shall the Trustees or shareholders or any of them
for any purpose be, nor be deemed to be, nor be treated in any way whatsoever
as, liable or responsible hereunder as partners or joint venturers. The
relationship of the shareholders to the Trustees shall be solely that of
beneficiaries of the Trust in accordance with the rights conferred upon them by
this Declaration.
SECOND: The name of the trust is "Lexington Corporate Properties Trust"
and, so far as may be practicable, the Trustees shall conduct the Trust's
activities, execute all documents and sue or be sued under that name, which name
(and the word "Trust" where used in this Declaration of Trust), except where the
context otherwise requires, shall refer to the Trustees collectively but not
individually or personally nor to the officers, agents, employees or
shareholders of the Trust or of such Trustees. Under circumstances in which the
Trustees determine the use of such name is not practicable or under
circumstances in which the Trustees are contractually bound to change that name,
they may use such other designation or they may adopt another name under which
the Trust may hold property or conduct its activities.
THIRD: (a) The purposes for which the Trust is formed and the business and
objects of the Trust are:
To engage in the real estate business (including, without limitation, the
ownership, operation and management of properties), and any lawful activities
incidental
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thereto. To engage in any lawful act or activity for which real estate
investment trusts may be organized under the applicable laws of the State of
Maryland.
(b) The foregoing purposes and objects shall be in no way limited or
restricted by reference to, or inference from, the terms of any other clause of
this or any other Article of this Declaration, and each shall be regarded as
independent; and they are intended to be and shall be construed as powers as
well as purposes and objects of the Trust and shall be in addition to and not in
limitation of the general powers of real estate investment trusts under the laws
of the State of Maryland.
FOURTH: The present address of the principal office of the Trust in the
State of Maryland is 300 Lombard Street, Baltimore, Maryland 21202.
FIFTH: The name and address of the resident agent of the Trust in this
State is The Corporation Trust Incorporated, 300 Lomard Street, Baltimore,
Maryland 21202. Said resident agent is a Maryland corporation.
SIXTH: (a) The total number of shares of beneficial interest of all
classes which the Trust has authority to issue is 90,000,000 shares of
beneficial interest (par value $.0001 per share), of which shares 40,000,000 are
classified as "Common Stock," 40,000,000 are classified as "Excess Stock" and
10,000,000 are classified as "Preferred Stock." The Board of Trustees may
classify and reclassify any unissued shares of beneficial interest by setting or
changing, in any one or more respects, the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
or terms or conditions of redemption of such shares of beneficial interest.
(b) The following is a description of the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of the Common Stock of the
Trust:
(1) Each share of Common Stock shall have one vote; and, except as
otherwise provided in respect of any other class of shares hereunder
classified or reclassified, the exclusive voting power for all purposes
shall be vested in the holders of the Common Stock. Shares of Common Stock
shall not have cumulative voting rights.
(2) Subject to the provisions of law and any preferences of any
class of shares hereafter classified or reclassified, dividends or other
distributions, including dividends or other distributions payable in
shares of another class of the
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Trust's shares, may be paid on the Common Stock of the Trust at such time
and in such amounts as the Board of Trustees may deem advisable.
(3) In the event of any liquidation, dissolution or winding up of
the Trust, whether voluntary or involuntary, the holders of the Common
Stock shall be entitled, after payment or provision for payment of the
debts and other liabilities of the Trust and the amount to which the
holders of any class of shares hereafter classified or reclassified having
a preference on distributions in the liquidation, dissolution or winding
up of the Trust shall be entitled, together with the holders of Excess
Stock and any other class of shares hereafter classified or reclassified
not having a preference on distributions in the liquidation, dissolution
or winding up of the Trust, to share ratably in the remaining net assets
of the Trust.
(4) Each share of Common Stock is convertible into Excess Stock as
provided in Article NINTH hereof.
(c) A description of the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the Excess Stock of the Trust is set forth in
Article NINTH hereof.
(d) Subject to the foregoing, the power of the Board of Trustees to
classify and reclassify any of the shares of beneficial interest shall include,
without limitation, subject to the provisions of this Declaration, authority to
classify or reclassify any unissued shares of such shares of beneficial interest
into a class or classes of preferred shares, preference shares, special shares
or other shares, and to divide and classify shares of any class into one or more
series of such class, by determining, fixing, or altering one of more of the
following:
(1) The distinctive designation of such class or series and the
number of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such or any other class or series,
the number of shares of any class or series may be decreased by the Board
of Trustees in connection with any classification or reclassification of
unissued shares and the number of shares of such class or series may be
increased by the Board of Trustees in connection with any such
classification or reclassification, and any shares of any class or series
which have been redeemed, purchased, otherwise acquired or converted into
shares of Common Stock or any other class or series shall become part of
the authorized beneficial interest and be subject to classification and
reclassification as provided in this subparagraph.
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(2) Whether or not shares of such class or series shall have
dividend rights and, if so, the rates, amounts and times at which, and the
conditions under which, dividends shall be payable on shares of such class
or series, whether any such dividends shall rank senior or junior to or on
a parity with the dividends payable on any other class or series of
shares, and the status of any such dividends as cumulative, cumulative to
a limited extent or non-cumulative and as participating or
non-participating.
(3) Whether or not shares of such class or series shall have voting
rights, in addition to any voting rights provided by law and, if so, the
terms of such voting rights.
(4) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions
thereof, including provision for adjustment of the conversion or exchange
rate in such events or at such times as the Board of Trustees shall
determine.
(5) Whether or not shares of such class or series shall be subject
to redemption and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable
and the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates; and
whether or not there shall be any sinking fund or purchase account in
respect thereof, and if so, the terms thereof.
(6) The rights of the holders of shares of such class or series
upon the liquidation, dissolution or winding up of the affairs of, or upon
any distribution of the assets of, the Trust, which rights may vary
depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on a parity with
such rights of any other class or series of shares.
(7) Whether or not there shall be any limitations applicable, while
shares or such class or series are outstanding, upon payment of dividends
or making of distributions on, or the acquisition of, or the use of moneys
for purchase or redemption of, any shares of the Trust, or upon any other
action of the Trust, including action under this subparagraph, and, if so,
the terms and conditions thereof.
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(8) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such
class or series, not inconsistent with law and this Declaration.
(e) For the purposes hereof and of any amendment hereto providing for the
classification or reclassification of any shares of beneficial interest or of
any other charter document of the Trust (unless otherwise provided in any such
articles or document), any class or series of shares of the Trust shall be
deemed to rank:
(1) prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to
the receipt of dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in preference or priority
to holders of such other class or series;
(2) on a parity with another class or series either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation price per share thereof be different
from those of such others, if the holders of such class or series of
shares shall be entitled to receipt of dividends or amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or redemption or liquidation
prices, without preference or priority over the holders of such other
class or series; and
(3) junior to another class or series either as to dividends or
upon liquidation, if the rights of the holders of such class or series
shall be subject or subordinate to the rights of the holders of such other
class or series in respect of the receipt of dividends or the amounts
distributable upon liquidation, dissolution or winding up, as the case may
be.
(f) The Board of Trustees hereby classifies 2,000,000 shares of Preferred
Stock of the Trust into a single series of Preferred Stock to be designated as
"Class A Senior Cumulative Convertible Preferred Stock, par value $.0001 per
share," and classifies 2,000,000 shares of Excess Stock of the Trust into a
single series of Excess Preferred Stock to be designated as "Excess Class A
Preferred Stock, par value $.0001 per share." The preferences, conversion or
other rights, voting powers, limitations as to dividends, qualifications and
terms and conditions of redemption of each such series shall be as set forth in
Annex A attached hereto.
(g) The legal ownership of the Trust estate and the right to conduct the
business of the Trust are vested exclusively in the Trustees and the
shareholders shall have no
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interest therein (other than beneficial interests 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.
(h) 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 such
shareholder's 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.
SEVENTH: (a) The business and affairs of the Trust shall be managed under
the direction of the Board of Trustees. The number of trustees of the Trust
shall be seven, which number may be increased or decreased by vote of at least a
majority of the entire Board of Trustees pursuant to the By-Laws of the Trust,
but shall never be fewer than the minimum number permitted by the General
Corporation Laws of the State of Maryland now or hereafter in force.
(b) Subject to the rights of the holders of any class of Preferred Stock,
if any, then outstanding, vacancies on the Board of Trustees resulting from any
increase in the authorized number of trustees, or death, resignation, retirement
or other cause shall be filed by a vote of the shareholders or a majority of the
trustees then in office. A vacancy on the Board of Trustees resulting from
removal of a trustee by the shareholders in accordance with subparagraph (d) of
Article SEVENTH shall be filled by a vote of the shareholders. A trustee so
chosen by the shareholders shall hold office for the balance of the term then
remaining. A trustee so chosen by the remaining trustees shall hold office until
the next annual meeting of shareholders, at which time the shareholders shall
elect a trustee to hold office for the balance of the term then remaining. No
decrease in the number of trustees constituting the Board of Trustees shall
affect the tenure of office of any trustee.
(c) Whenever the holders of any one or more series of Preferred Stock of
the Trust shall have the right, voting separately as a class, to elect one or
more trustees of the Trust, the Board of Trustees shall consist of said trustees
so elected in addition to the number of trustees of fixed as provided above in
this Article. Notwithstanding the foregoing, and except as otherwise may be
required by law, whenever the holders of any one or more series of Preferred
Stock of the Trust shall have the right, voting separately
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as a class, to elect one or more trustees of the Trust, the terms of the trustee
or trustees elected by such holders shall expire at the next succeeding annual
meeting of shareholders.
(d) Subject to the rights of the holders of any class separately entitled
to elect one or more trustees, any trustee, or the entire Board of Trustees, may
be removed from office at any time, but only for cause and then only by the
affirmative vote of the holders of at least 80% of the combined voting power of
all classes of shares of beneficial interest entitled to vote in the election
for trustees.
(e) The names of the Trustees who will serve until the first annual
meeting of the Trust and until their successors are elected and qualify are as
follows:
E. Robert Roskind
Richard J. Rouse
T. Wilson Eglin
Kevin W. Lynch
Carl D. Glickman
John D. McGurk
Seth M. Zachary
EIGHTH: (a) The following provisions are hereby adopted for the purpose of
defining, limiting, and regulating the powers of the Trust and of the trustees
and the shareholders:
(1) The Board of Trustees is hereby empowered to authorize the
issuance from time to time of shares of its shares of any class, whether
now or hereafter authorized, or securities convertible into shares of its
shares of any class or classes, whether now or hereafter authorized, for
such consideration as may be deemed advisable by the Board of Trustees and
without any action by the shareholders.
(2) No holder of any shares or any other securities of the Trust,
whether now or hereafter authorized, shall have any preemptive right to
subscribe for or purchase any shares or any other securities of the Trust
other than such, if any, as the Board of Trustees, in its sole discretion,
may determine and at such price or prices and upon such other terms as the
Board of Trustees, in its sole discretion, may fix; and any shares or
other securities which the Board of Trustees may determine to offer for
subscription may, as the Board of Trustees in its sole discretion shall
determine, be offered to the holders of any class, series or type of
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shares or other securities at the time outstanding to the exclusion of the
holders of any or all other classes, series or types of shares or other
securities at the time outstanding.
(3) The Board of Trustees of the Trust shall, consistent with
applicable law, have the power, in its sole discretion, to determine from
time to time in accordance with sound accounting practice or other
reasonable valuation methods, what constitutes annual or other net
profits, earnings, surplus, or net assets in excess of capital; to fix and
vary from time to time the amount to be reserved as working capital, or
determine that retained earnings or surplus shall remain in the hands of
the Trust; to set apart out of any funds of the Trust such reserve or
reserves in such amount or amounts and for such proper purpose or purposes
as it shall determine and to abolish any such reserve or any part thereof;
to distribute and pay distributions or dividends in shares, cash or other
securities or property, out of surplus or any other funds or amounts
legally available therefor, at such times and to the shareholders of
record on such dates as it may from time to time determine; and to
determine whether and to what extent and at what times and places and
under what conditions and regulations the books, accounts and documents of
the Trust, or any of them, shall be open to the inspection of
shareholders, except as otherwise provided by statute or by the By-Laws,
and, except as so provided, no shareholder shall have any right to inspect
any book, account or document of the Trust unless authorized so to do by
resolution of the Board of Trustees.
(4) Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the
total number of shares of all classes of beneficial interest or of the
total number of shares of any class of beneficial interest, such action
shall be valid and effective if authorized by the affirmative vote of the
holders of a majority of the total number of shares of all classes
outstanding and entitled to vote thereon, except as otherwise provided in
this Declaration.
(5) The Trust shall provide any indemnification permitted by the
laws of Maryland and shall indemnify trustees, officers, agents and
employees as follows: (A) the Trust shall indemnify its trustees and
officers, whether serving the Trust or at its request any other entity, to
the full extent required or permitted by the General Laws of the State of
Maryland now or hereafter in force, including the advance of expenses
under the procedures and to the full extent permitted by law and (B) the
Trust shall indemnify other employees and agents, whether serving the
Trust or at its request any other entity, to such extent as shall be
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authorized by the Board of Trustees or the Trust's By-Laws and be
permitted by law. The foregoing rights of indemnification shall not be
exclusive of any other rights to which those seeking indemnification may
be entitled. The Board of Trustees may take such action as is necessary to
carry out these indemnification provisions and is expressly empowered to
adopt, approve and amend from time to time such By-Laws, resolutions or
contracts implementing such provisions or such further indemnification
arrangements as may be permitted by law. No amendment of this Declaration
shall limit or eliminate the right to indemnification provided hereunder
with respect to acts or omissions occurring prior to such amendment or
repeal.
(6) To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no trustee or officer of the
Trust shall be personally liable to the Trust or its shareholders for
money damages. No amendment of this Declaration or repeal of any of its
provisions shall limit or eliminate the benefits provided to trustees and
officers under this provision with respect to any act or omission which
occurred prior to such amendment or repeal.
(7) Any written instrument creating an obligation of the Trust
shall, to the extent practicable, include a reference to this Declaration
and provide that neither the shareholders nor the Trustees nor any
officers, employees or agents of the Trust shall be liable thereunder and
that all persons shall look solely to the Trust estate for the payment of
any claim thereunder or for the performance thereof; however, the omission
of such provision from any such instrument shall not render the
shareholders, any Trustee, or any officer, employee or agent of the Trust
liable nor shall the shareholders, any Trustee or any officer, employee or
agent of the Trust be liable to any one for such omission.
(8) Any Trustee or officer, employee or agent of the Trust may
acquire, own, hold, and dispose of shares in the Trust, for such
individual's account, and may exercise all rights of a shareholder to the
same extent and in the same manner as if such individual were not a
Trustee or officer, employee or agent of the Trust. Any Trustee or
officer, employee or agent of the Trust may, in such individual's personal
capacity or in the capacity of trustee, officer, director, shareholder,
partner, member, advisor or employee of any person or otherwise, have
business interests and engage in business activities similar to or in
addition to those relating to the Trust, which interests and activities
may be similar to and competitive with those of the Trust and may include
the acquisition, syndication, holding, management, development, operation
or disposition, for such individual's own account, or for the account of
such person or others, of interests in
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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 such person 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. Subject to the provisions of Section (a)(10) below,
any Trustee or officer, employee or agent of the Trust may be interested
as trustee, officer, director, shareholder, partner, member, advisor or
employee of, or otherwise have a direct or indirect interest in, any
person who may be engaged to render advice or services to the Trust, and
may receive compensation from such person as well as compensation as
Trustee, officer, employee or agent or otherwise hereunder. None of these
activities shall be deemed to conflict with such person's duties and
powers as Trustee or officer, employee or agent of the Trust.
(9) Except as otherwise provided by this Declaration, and in the
absence of fraud, a contract, act or other transaction between the Trust
and any other person in which the Trust is interested, shall be valid, and
no Trustee or officer, employee or agent of the Trust shall have any
liability as a result of entering into any such contract, act or
transaction, even though (a) one or more of the Trustees, or officers,
employee or agents of the Trust are directly or indirectly interested in
or connected with, or are trustees, partners, directors, employees,
officers or agents of, such other person, or (b) one or more of the
Trustees or officers, employees or agents of the Trust, individually or
jointly with others, is a party or are parties to, or are directly or
indirectly interested in or connected with, such contract, act or
transaction; provided that in each such case (i) such interest or
connection is disclosed or known to the Trustees and thereafter the
Trustees authorize or ratify such contract, act or other transaction by
affirmative vote of a majority of the Trustees who are not so interested
or (ii) such interest or connection is disclosed or known to the
shareholders, and thereafter such contract, act or transaction is approved
by shareholders holding a majority of the shares then outstanding and
entitled to vote thereon.
Notwithstanding any other provision of this Declaration, the Trust
may engage in a transaction with (a) any Trustee, officer, employee or
agent of the Trust (acting in such person's individual capacity), (b) any
director, trustee, partner, officer, employee or agent (acting in such
person's individual capacity) of any investment advisor of the Trust, (c)
any investment advisor of the Trust or (d) an Affiliate of any of the
foregoing, provided that such transaction has, after disclosure of such
affiliation, been approved or ratified by the affirmative vote of
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a majority of the Trustees not having any interest in such transaction
after a determination by them that such transaction is fair to the Trust
and the shareholders.
(10) Any act of the Trustees or of the officers, employees or agents
of the Trust purporting to be done in their capacity as such, shall, as to
any persons dealing with such Trustees, officers, employees or agents, be
conclusively deemed to be within the purposes of this Trust and within the
powers of such Trustees or officers, employees or agents. No person
dealing with the Trustees or any of them or with the officers, employees
or agents of the Trust shall be bound to see to the application of any
funds or property passing into their hands or control.
(11) The Trustees and the officers, employees and agents of the
Trust may consult with counsel (which may be a firm in which one or more
of the Trustees or the officers, employees or agents of the Trust is or
are members) and the advice or opinion of such counsel shall be full and
complete personal protection to all the Trustees and the officers,
employees and agents of the Trust in respect of any action taken or
suffered by them in good faith and in reliance on or in accordance with
such advice or opinion. In discharging their duties, Trustees or officers,
employees or agents of the Trust, when acting in good faith, may rely upon
financial statements of the Trust represented to them to fairly present
the financial position or results of operations of the Trust by the chief
financial officer of the Trust or the officer of the Trust having charge
of its books of account, or stated in a written report by an independent
certified public accountant fairly to present the financial position or
results of operations of the Trust. The Trustees and the officers,
employees and agents of the Trust may rely, and shall be personally
protected in acting, upon any instrument or other document believed by
them to be genuine.
(12) For any shareholder proposal to be presented in connection with
an annual meeting of shareholders of the Trust, including any proposal
relating to the nomination of a trustee to be elected to the Board of
Trustees of the Trust, the shareholders must have given timely notice
thereof in writing to the Secretary of the Trust in the manner, and
containing the information, required by the By-Laws. Shareholder proposals
to be presented in connection with a special meeting of shareholders will
be presented by the Trust only to the extent required by Section 2-502 of
the Corporations and Associations Article of the Annotated Code of
Maryland.
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(b) The Trust reserves the right to amend, alter, change or repeal any
provision contained in this Declaration, including any amendments changing the
terms or contract rights, as expressly set forth herein, of any of its
outstanding shares by classification, reclassification or otherwise, by a
majority of the trustees adopting a resolution setting forth the proposed
change, declaring its advisability, and either calling a special meeting of the
shareholders certified to vote on the proposed change, or directing the proposed
change to be considered at the next annual shareholders meeting. Unless
otherwise provided herein, the proposed change will be effective only if it is
adopted upon the affirmative vote of the holders of not less than a majority of
the aggregate votes entitled to be cast thereon (considered for this purpose as
a single class); provided, however, that any amendment to, repeal of or adoption
of any provision inconsistent with Article SEVENTH or subparagraph (a)(7), this
subparagraph (b) or subparagraph (c) of Article EIGHTH will be effective only if
it is adopted upon the affirmative vote of not less than 80% of the aggregate
votes entitled to be cast thereon (considered for this purpose as a single
class).
(c) In furtherance and not in limitation of the powers conferred by
statute, the Board of Trustees is expressly authorized to make, alter or repeal
the By-Laws of the Trust; provided that any such alteration or repeal by the
Board of Trustees shall require the vote of a majority of the Board of Trustees
at a meeting held in accordance with the provisions of the By-Laws.
(d) The Trustees shall be entitled to receive such reasonable compensation
for their services as Trustees as the Board of 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 (a)(8) and (a)(9) of Article EIGHTH, such services may include,
without limitation, services as an officer of the Trust, 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.
(e) The right, title and interest of the Trustees 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 whether
or not conveyancing documents having been executed and delivered pursuant to
this Declaration or otherwise. Appropriate written evidence of the election and
qualification of successor and additional Trustees shall be filed with the
records of the Trust and in such other offices or places as the Trustees may
deem necessary, appropriate or desirable.
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(f) The Trustees, subject only to the specific limitations contained in
this Declaration, shall have, without further or other authorization, and free
from any power or control on the part of the shareholders, full, absolute and
exclusive power, control and authority over the Trust estate and over the
business and affairs of the Trust to the same extent as if the Trustees were the
sole owners thereof in their own right, and may do all such acts and things as
in their sole judgment and discretion are necessary for or incidental to or
desirable for carrying out or conducting the business of the Trust. Any
construction of this Declaration or any determination made in good faith by the
Trustees as to the purposes of the Trust or the existence of any power or
authority hereunder shall be conclusive. In construing the provisions of this
Declaration, the presumption shall be in favor of the grant of powers and
authority to the Trustees.
(g) The enumeration and definition of particular powers of the Board of
Trustees included in the foregoing shall in no way be limited or restricted by
reference to or inference from the terms of any other clause of this or any
other Article of this Declaration, or construed as or deemed by inference or
otherwise in any manner to exclude or limit any powers conferred upon the Board
of Trustees under the General Corporation Laws of the State of Maryland now or
hereafter in force.
NINTH: (a)(1) For the purposes of this Article NINTH, the following terms
shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Capital Stock by a Person
who would be treated as an owner of such shares of Capital Stock either
directly or indirectly through the application of Section 544 of the Code
as modified by Section 856(h)(1)(B) of the Code. The terms "Beneficial
Owner," "Beneficially Owns" and "Beneficially Owned" shall have
correlative meanings.
"Beneficiary" shall mean a beneficiary of the Charitable Trust as
determined pursuant to subparagraph (b)(5) of this Article NINTH.
"Board of Trustees" shall mean the Board of Trustees of the Trust.
"By-Laws" shall mean the By-Laws of the Trust.
"Capital Stock" shall mean shares of beneficial interest in the Trust
which are classified as Common Stock, Excess Stock or Preferred Stock, if
any.
"Charitable Trust" shall mean the trust created pursuant to subparagraph
(b)(1) of this Article NINTH.
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"Charitable Trustee" shall mean the Trust, acting as trustee for the
Charitable Trust, or any successor trustee appointed by the Trust.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Constructive Ownership" shall mean ownership of Capital Stock by a Person
who would be treated as an owner of such shares of Capital Stock either
directly or indirectly through the application of Section 318 of the Code,
as modified by Section 856(d)(5) of the Code. The terms "Constructive
Owner," "Constructively Owns" and "Constructively Owned" shall have
correlative meanings.
"Equity Stock" shall mean shares of beneficial interest in the Trust which
are classified as Common Stock or Preferred Stock.
"Market Price" on any date shall mean, with respect to the Common Stock,
the average of the daily market price for ten consecutive trading days
immediately preceding the date. The market price for each such trading day
shall be determined as follows: (A) if the Common Stock is listed or
admitted to trading on any securities exchange or included for quotation
on the NASDAQ-National Market System, the closing price, regular way, on
such day, or if no such sale takes place on such day, the average of the
closing bid and asked prices on such day, as reported by a reliable
quotation source designated by the Trust; (B) if the Common Stock is not
listed or admitted to trading on any securities exchange or included for
quotation on the NASDAQ-National Market System, the last reported sale
price on such day or, if no sale takes place on such day, the average of
the closing bid and asked prices on such day, as reported by a reliable
quotation source designated by the Trust; or (C) if the Common Stock is
not listed or admitted to trading on any securities exchange or included
for quotation on the NASDAQ-National Market System and no such last
reported sale price or closing bid and asked prices are available, the
average of the reported high bid and low asked prices on such day, as
reported by a reliable quotation source designated by the Trust, or if
there shall be no bid and asked prices on such day, the average of the
high bid and low asked prices, as so reported, on the most recent day (not
more than ten days prior to the date in question) for which prices have
been so reported; provided that if there are no bid and asked prices
reported during the ten days prior to the date in question, the Market
Price of the Common Stock shall be determined by the Trust acting in good
faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate.
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"Ownership Limit" shall mean 9.8% of the value of the outstanding Equity
Stock of the Trust.
"Person" shall mean an individual, corporation, partnership, estate, trust
(including a trust qualified under Section 401(a) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of
the Code, joint stock company or other entity and also includes a group as
that term is used for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer that results in Excess Stock, the purported beneficial
transferee for whom the Purported Record Transferee would have acquired
shares of Equity Stock if such transfer had been valid under subparagraph
(a)(2) of this Article NINTH.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of the
Code.
"Restriction Termination Date" shall mean the first day after the date
hereof on which the Board of Trustees of the Trust determines that it is
no longer in the best interests of the Trust to attempt to, or continue
to, qualify as a REIT.
"Transfer" shall mean any sale, transfer, gift, hypothecation, pledge,
assignment, devise or other disposition of Capital Stock (including (i)
the granting of any option or entering into any agreement for the sale,
transfer or other disposition of Equity Stock or (ii) the sale, transfer,
assignment or other disposition of any securities or rights convertible
into or exchangeable for Capital Stock), whether voluntary or involuntary,
whether of record, constructively or beneficially and whether by operation
of law or otherwise.
(2)(A)Except as provided in subparagraph (a)(9) of this Article
NINTH, from the date hereof and prior to the Restriction Termination Date,
no Person shall Beneficially Own or Constructively Own shares of the
outstanding Equity Stock in excess of the Ownership Limit; (B) except as
provided in subparagraph (a)(9) of this Article NINTH, from the date
hereof and prior to the Restriction Termination Date, any Transfer that,
if effective, would result in any Person Beneficially Owning or
Constructively Owning Equity Stock in excess of the Ownership Limit shall
be void ab initio as to the Transfer of that number of shares of Equity
Stock which would be otherwise Beneficially or Constructively Owned by
such Person in excess of the Ownership Limit; and the intended transferee
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shall acquire no rights in such excess shares of Equity Stock; (C) except
as provided in subparagraph (a)(9) of this Article NINTH, from the date
hereof and prior to the Restriction Termination Date, any Transfer that,
if effective, would result in the Equity Stock's being Beneficially Owned
by fewer than 100 Persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Transfer of that number of
shares which would be otherwise Beneficially or Constructively Owned by
the transferee; and the intended transferee shall acquire no rights in
such excess shares of Equity Stock; and (D) from the date hereof and prior
to the Restriction Termination Date, any Transfer of shares of Equity
Stock that, if effective, would result in the Trust's being "closely held"
within the meaning of Section 856(h) of the Code shall be void ab initio
as to the Transfer of that number of shares of Equity Stock which would
cause the Trust to be "closely held" within the meaning of Section 856(h)
of the Code; and the intended transferee shall acquire no rights in such
shares of Equity Stock.
(3)(A)If, notwithstanding the other provisions contained in this
Article NINTH, at any time after the date hereof and prior to the
Restriction Termination Date, there is a purported Transfer or other
change in the capital structure of the Trust such that any Person would
either Beneficially Own or Constructively Own Equity Stock in excess of
the Ownership Limit, then, except as otherwise provided in subparagraph
(a)(9), such shares of Equity Stock in excess of the Ownership Limit
(rounded up to the nearest whole share) shall be automatically converted
into an equal number of shares of Excess Stock (such conversion shall be
effective as of the close of business on the business day prior to the
date of the Transfer or change in capital structure); and (B) if,
notwithstanding the other provisions contained in this Article NINTH, at
any time after the date hereof and prior to the Restriction Termination
Date, there is a purported Transfer or other change in the capital
structure of the Trust which, if effective, would cause the Trust to
become "closely held" within the meaning of Section 856(h) of the Code,
then the shares of Equity Stock being Transferred or which are otherwise
affected by the change in capital structure and which, in either ease,
would cause the Trust to be "closely held" within the meaning of Section
856(h) of the Code (rounded up to the nearest whole share) shall be
automatically converted into an equal number of shares of Excess Stock.
Such conversion shall be effective as of the close of business on the
business day prior to the date of the transfer or change in capital
structure.
(4) If the Board of Trustees or its designees at any time determine
in good faith that a transfer has taken place in violation of subparagraph
(a)(2) of this Article NINTH or that a Person intends to acquire or has
attempted to acquire
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Beneficial Ownership or Constructive Ownership of any shares of Equity
Stock in violation of subparagraph (a)(2) of this Article NINTH, the Board
of Trustees or its designees shall take such action as it or they deem
advisable to refuse to give effect to or to prevent such Transfer,
including, but not limited to, refusing to give effect to such transfer on
the books of the Trust or instituting proceedings to enjoin such Transfer;
provided, however, that any Transfers or attempted Transfers in violation
of subparagraph (a)(2) of this Article NINTH shall be void ab initio and
automatically result in the conversion described in subparagraph (a)(3),
irrespective of any action (or non-action) by the Board of Trustees or its
designees.
(5) Any Person who acquires or attempts to acquire shares of Equity
Stock in violation of subparagraph (a)(2) of this Article NINTH, or any
Person who is a transferee such that Excess Stock results under
subparagraph (a)(3) of this Article NINTH, shall immediately give written
notice to the Trust of such event and shall provide to the Trust such
other information as the Trust may request in order to determine the
effect, if any, of such transfer or attempted transfer on the Trust's
status as a REIT.
(6) From the date hereof and prior to the Restriction Termination
Date: (A) every Beneficial Owner or Constructive Owner of 5.0% or more
(during any periods in which the number of such Beneficial Owners or
Constructive Owners exceeds 1,999) or of more than 1% (during any periods
in which the number of such Beneficial Owners or Constructive Owners is
fewer than 2,000), or such lower percentages as required pursuant to
regulations under the Code, of the outstanding Equity Stock of the Trust
shall, within 30 days after January 1 of each year, give written notice to
the Trust stating the name and address of such Beneficial Owner or
Constructive Owner, the number of shares of Equity Stock Beneficially
Owned or Constructively Owned, and a description of how such shares are
held. Each such Beneficial Owner or Constructive Owner shall provide to
the Trust such additional information as the Trust may request in order to
determine the effect, if any, of such Beneficial Ownership on the Trust's
status as a REIT and to ensure compliance with the Ownership Limit; and
(B) each Person who is a Beneficial Owner or Constructive Owner of Equity
Stock and each Person (including the stockholder of record) who is holding
Equity Stock for a Beneficial Owner or Constructive Owner shall provide to
the Trust such information as the Trust may request in order to determine
the Trust's status as a REIT and to ensure compliance with the Ownership
Limit.
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(7) Nothing contained in this Article NINTH shall limit the
authority of the Board of Trustees to take such other action as it deems
necessary or advisable to protect the Trust and the interests of its
shareholders by preservation of the Trust's status as a REIT and to ensure
compliance with the Ownership Limit.
(8) In the case of an ambiguity in the application of any of the
provisions of paragraph (a) of this Article NINTH, including any
definition contained in subparagraph (a)(1), the Board of Trustees shall
have the power to determine the application of the provisions of this
paragraph (a) with respect to any situation based on the facts known to
it.
(9) The Board of Trustees, upon receipt of a ruling from the
Internal Revenue Service or an opinion of counsel or other evidence
satisfactory to the Board of Trustees and upon such other conditions as
the Board of Trustees may direct, in each case provided that the
restrictions contained in subparagraph (a)(2)(C) and/or subparagraph
(a)(2)(D) of this Article NINTH will not be violated, may exempt a Person
from the Ownership Limit.
(10) Legend. Each certificate for Equity Stock shall bear the
following legend:
The shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Trust's maintenance of its
status as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (the "Code"). Subject to certain exceptions, no Person
may (1) Beneficially Own or Constructively Own shares of Equity Stock in
excess of 9.8% of the value of the outstanding Equity Stock of the Trust;
or (2) Beneficially Own Equity Stock that would result in the Trust's
being "closely held" under Section 856(h) of the Code. Any Person who
attempts to Beneficially Own or Constructively Own shares of Equity Stock
in excess of the above limitations must immediately notify the Trust. All
capitalized terms in this legend have the meanings defined in this
Declaration, as the same may be further amended from time to time, a copy
of which including the restrictions on transfer, will be sent without
charge to each shareholder who so requests. If the restrictions on
transfer are violated, the shares of Equity Stock represented hereby will
be automatically converted for shares of Excess Stock which will be held
in trust by the Trust.
(b) (1) Upon any purported Transfer that results in Excess Stock pursuant
to subparagraph (a)(3) of this Article NINTH, such Excess Stock shall be
deemed to have been transferred to the Trust, as Charitable Trustee of a
Charitable Trust for
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the exclusive benefit of such Beneficiary or Beneficiaries to whom an
interest in such Excess Stock may later be transferred pursuant to
subparagraph (b)(5) of this Article NINTH. Shares of Excess Stock so held
in trust shall be issued and outstanding shares of the Trust. The
Purported Record Transferee shall have no rights in such Excess Stock
except the right to designate a transferee of such Excess Stock upon the
terms specified in subparagraph (b)(5) of this Article NINTH. The
Purported Beneficial Transferee shall have no rights in such Excess Stock
except as provided in subparagraph (b)(5) of this Article NINTH.
(2) Excess Stock shall not be entitled to any dividends. Any dividend
or distribution paid prior to the discovery by the Trust that the shares
of Equity Stock have been converted for Excess Stock shall be repaid to
the Trust upon demand, and any dividend or distribution declared but
unpaid shall be rescinded as void ab initio with respect to such shares of
Equity Stock.
(3) Subject to the preferential rights of the Preferred Stock, if
any, as may be determined by the Board of Trustees of the Trust pursuant
to Article SIXTH of this Declaration, in the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution
of the assets of, the Trust, each holder of shares of Excess Stock shall
be entitled to receive, ratably with each other holder of Common Stock and
Excess Stock, that portion of the assets of the Trust available for
distribution to its shareholders as the number of shares of the Excess
Stock held by such holder bears to the total number of shares of Common
Stock and Excess Stock then outstanding. The Trust, as holder of the
Excess Stock in trust or, if the Trust has been dissolved, any trustee
appointed by the Trust prior to its dissolution, shall distribute ratably
to the Beneficiaries of the Charitable Trust, when determined, any such
assets received in respect of the Excess Stock in any liquidation,
dissolution or winding up of, or any distribution of the assets of, the
Trust.
(4) The holders of shares of Excess Stock shall not be entitled to
vote on any matters (except as required by the General Corporation Laws of
the State of Maryland).
(5)(A) Excess Stock shall not be transferable. The Purported Record
Transferee may freely designate a Beneficiary of its interest in the
Charitable Trust (representing the number of shares of Excess Stock held
by the Charitable Trust attributable to a purported transfer that resulted
in the Excess Stock), if (i) the shares of Excess Stock held in the
Charitable Trust would not be Excess Stock in the hands of such
Beneficiary and (ii) the Purported Beneficial Transferee does
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not receive a price for designating such Beneficiary that reflects a price
per share for such Excess Stock that exceeds (x) the price per share such
Purported Beneficial Transferee paid for the Equity Stock in the purported
Transfer that resulted in the Excess Stock, or (y) if the Purported
Beneficial Transferee did not give value for such shares of Excess Stock
(such as through a gift, devise or other transaction), a price per share
equal to the Market Price on the date of the purported Transfer that
resulted in the Excess Stock. Upon such transfer of an interest in the
Charitable Trust, the corresponding shares of Excess Stock in the
Charitable Trust shall be automatically converted for an equal number of
shares of Equity Stock, and such shares of Equity Stock shall be
transferred of record to the Beneficiary of the interest in the Charitable
Trust designated by the Purported Record Transferee as described above if
such Equity Stock would not be Excess Stock in the hands of such
Beneficiary. Prior to any transfer of any interest in the Charitable
Trust, the Purported Record Transferee must give advance notice to the
Trust of the intended transfer, and the Trust must have waived in writing
its purchase rights under subparagraph (b)(6) of this Article NINTH; (B)
notwithstanding the foregoing, if a Purported Beneficial Transferee
receives a price for designating a Beneficiary of an interest in the
Charitable Trust that exceeds the amounts allowable under subparagraph
(b)(5) (A) of this Article NINTH, such Purported Beneficial Transferee
shall pay, or cause the Beneficiary of the interest in the Charitable
Trust to pay, such excess to the Trust.
(6) Shares of Excess Stock shall be deemed to have been offered for
sale to the Trust, or its designee at a price per share equal to the
lesser of (i) the price per share in the transaction that created such
Excess Stock (or, in the case of devise or gift, the Market Price at the
time of such devise or gift) and (ii) the Market Price on the date the
Trust, or its designee, accepts such offer. Subject to the satisfaction of
any applicable requirements of the General Trust Laws of the State of
Maryland, the Trust shall have the right to accept such offer for a period
of 90 days after the later of (i) the date of the transfer that resulted
in such Excess Stock and (ii) the date the Board of Trustees determines in
good faith that a Transfer resulting in Excess Stock has occurred, if the
Trust does not receive a notice of such Transfer pursuant to subparagraph
(a)(5) of this Article NINTH.
(c) Nothing contained in this Article NINTH or in any other provision of
this Declaration shall limit the authority of the Board of Trustees to take such
other action as it, in its sole discretion, deems necessary or advisable to
protect the Trust and the interests of the shareholders by maintaining the
Trust's eligibility to be, and preserving the Trust's status as, a qualified
REIT under the Code.
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(d) If any of the foregoing restrictions on transfer of Excess Stock is
determined to be void, invalid or unenforceable by any court of competent
jurisdiction, the Purported Beneficial Transferee may be deemed, at the option
of the Board of Trustees, to have acted as an agent of the Trust in acquiring
such Excess Stock and to hold such Excess Stock on behalf of the Trust.
(e) Nothing in this Article NINTH precludes the settlement of transactions
entered into through the facilities of the New York Stock Exchange.
TENTH: (a) The duration of the Trust shall be perpetual. The Trust shall
be subject to termination at any time by the vote of the holders of two-thirds
of the outstanding shares of Common Stock.
(b) Upon the termination of the Trust:
1. the Trust shall carry on no business except for the purpose of
winding up its affairs;
2. 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
3. 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 case or in kind or partly each)
among the shareholders according to their respective rights.
ELEVENTH: (a) 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 no fewer than
15 days after delivery to the shareholders of the Annual Report (as defined
below) and within six (6) months after the end of each fiscal year, commencing
with the fiscal year ending December 31, 1997. Special meetings of the
shareholders may only be called by a majority of the trustees. If
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there shall be no trustees, the officers of the Trust shall promptly call a
special meeting of the shareholders entitled to vote for the election of
successor trustees.
No business shall be transacted by the shareholders at a special
meeting other than business that is either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the trustees
(or any duly authorized committee thereof) or (ii) otherwise properly brought
before the shareholders by or at the direction of the trustees.
(b) Not later than ninety (90) days after the close of each fiscal year of
the Trust following the end of fiscal year 1997, the trustees shall mail or
deliver a report of the business and operations of the Trust during such fiscal
year to the shareholders, which report shall constitute the accounting of the
trustees for such fiscal year. Subject to Section 8-401 of the Annotated Code of
Maryland, the report (the "Annual Report") shall be in such form and have such
content as the trustees deem proper. The Annual Report shall include a balance
sheet, an income statement and a surplus statement, each prepared in accordance
with generally accepted accounting principles. Such financial statements shall
be certified by an independent public accountant based on a full examination of
the books and records of the Trust conducted in accordance with generally
accepted auditing procedure. Manually signed copies of the Annual Report and of
the auditor's certificate will be filed with the Maryland Department of
Assessments and Taxation. A manually signed copy of the accountant's report
shall be filed with the trustees.
(c) 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.
(d) After termination of the Trust and distribution of the trust estate to
the shareholders as herein provided, the Trustees shall execute and lodge among
the records of the Trust an instrument in writing setting forth the fact of such
termination and such distribution, a copy of which instrument shall be filed
with the Maryland Department of Assessments and Taxation, and the Trustees shall
thereupon be discharged from all further liabilities and duties hereunder and
the rights and interests of all shareholders shall thereupon cease.
(e) This Declaration may be amended (except that the provisions governing
the personal liability of the shareholders, Trustees and of the officers,
employees and agents of the Trust and the prohibition of assessments upon
shareholders may not be amended in
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any respect that could increase the personal liability of such shareholders,
Trustees or officers, employees and agents of the Trust) at a meeting of
shareholders by holders of shares representing a majority of the total number of
votes authorized to be cast in respect of shares then outstanding and entitled
to vote thereon; provided that any amendment of Article TENTH shall require the
approval of holders of shares representing two-thirds (2/3) of the total number
of votes authorized to be cast in respect of shares then outstanding and
entitled to vote thereon. A two-thirds (2/3) majority of the Trustees may, after
fifteen (15) days' written notice to the shareholders, also amend this
Declaration without the vote or consent of shareholders if in good faith they
deem it necessary to conform this Declaration to the requirements of the REIT
Provisions of the Internal Revenue Code, but the Trustees shall not be liable
for failing to do so.
(f) This Declaration is executed and acknowledged by the Trustees with
reference to the statutes and laws of the State of Maryland, and the rights of
all parties and the construction and effect of every provision hereof shall be
subject and construed according to the statutes and laws of such State. To the
extent not otherwise provided in this Declaration, the provisions of Titles 1,
2, 3 and 8 of the Corporations and Associations Articles of the Annotated Code
of Maryland shall be deemed to apply to the Trust.
TWELFTH: In the event any term, provision, sentence or paragraph of this
Declaration of Trust is declared by a court of competent jurisdiction to be
invalid or unenforceable, such term, provision, sentence or paragraph shall be
deemed severed from the remainder of the Declaration, and the balance of the
Declaration shall remain in effect and be enforced to the fullest extent
permitted by law and shall be construed to preserve the intent and purposes of
the Declaration. Any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such term, provision, sentence or
paragraph of this Declaration in any other jurisdiction.
23
<PAGE> 24
IN WITNESS WHEREOF, the undersigned have caused this Declaration of Trust
to be executed as of this 22nd day of December, 1997.
Lexington Corporate Properties /s/ E. ROBERT ROSKIND
355 Lexington Avenue-14th Floor --------------------------------
New York, NY 10017 Name: E. ROBERT ROSKIND
Address:
Lexington Corporate Properties /s/ RICHARD J. ROUSE
355 Lexington Avenue-14th Floor --------------------------------
New York, NY 10017 Name: RICHARD J. ROUSE
Address:
Lexington Corporate Properties /s/ T. WILSON EGLIN
355 Lexington Avenue-14th Floor --------------------------------
New York, NY 10017 Name: T. WILSON EGLIN
Address:
The Townsend Group /s/ KEVIN W. LYNCH
1500 West Third Street-Suite 410 --------------------------------
Cleveland, Ohio 44113 Name: KEVIN W. LYNCH
Address:
1140 Leader Building /s/ CARL D. GLICKMAN
526 Superior Avenue-Suite 1140 --------------------------------
Cleveland, Ohio 44114 Name: CARL D. GLICKMAN
Address:
Rothchild Realty Inc. /s/ JOHN D. MCGURK
1251 Avenue of Americas-51st Floor --------------------------------
New York, NY 10020 Name: JOHN D. MCGURK
Address:
Paul, Hastings, Janofsky & Walker /s/ SETH M. ZACHARY
399 Park Avenue --------------------------------
New York, NY 10022-4697 Name: SETH M. ZACHARY
Address:
24
<PAGE> 25
ANNEX A
TO THE DECLARATION OF TRUST OF
LEXINGTON CORPORATE PROPERTIES TRUST
CLASSIFYING 2,000,000 SHARES OF PREFERRED STOCK
AS CLASS A SENIOR CUMULATIVE CONVERTIBLE
PREFERRED STOCK AND 2,000,000 SHARES OF EXCESS
STOCK AS EXCESS CLASS A PREFERRED STOCK
OF
LEXINGTON CORPORATE PROPERTIES TRUST
Pursuant to authority granted to and vested in tho Board of Trustees
of the Trust (the "Board") by the Declaration of Trust (the "Declaration"), the
Board hereby classifies 2,000,000 shares of Preferred Stock of the Trust into a
single series of Preferred Stock to be designated as "Class A Senior Cumulative
Convertible Preferred Stock, par value $.0001 per share," and classifies
2,000,000 shares of Excess Stock of the Trust into a single series of Excess
Preferred Stock to be designated as "Excess Class A Preferred Stock, par value
$.0001 per share".
The preferences, conversion or other rights, voting powers, limitations as
to dividends, qualifications and terms and conditions of redemption of each such
series, are as follows:
Section 1. Preferred Shares--Designation and Amount. The shares of
such class of Preferred Stock shall be designated as "Class A Senior Cumulative
Convertible Preferred Stock" and the number of shares constituting the series so
designated shall be 2,000,000 (the "Preferred Shares").
Section 2. Preferred Shares--Dividends.
(a) General. Subject to Section 9, the Trust shall pay in cash,
when, as and if declared by the Board, out of funds legally available therefor
as provided by
A-1
<PAGE> 26
Section 2-304 of the M.G.C.L. and limited by Section 2-311 of the M.G.C.L. (the
"Legally Available Funds"), dividends at the quarterly rate equal to the
Applicable Dividend Rate (as defined below) per Preferred Share, per quarter.
Such dividends shall be cumulative, shall be paid for each of the quarters
ending March 30, June 30, September 30 and December 31 of each year, and shall
be paid quarterly on each February 15, May 15, August 15 and November 15, with
respect to the prior quarter, commencing May 15, 1997 (except that if such date
is not a Business Day (as defined below), then such dividend will be payable on
the next succeeding Business Day) to the holders of record at the close of
business on the date specified by the Board at the time such dividend is
declared no more than thirty (30) days prior to the date fixed for payment
thereof. Dividends shall begin to accrue and be cumulative from the date of
issuance of such Preferred Share to and including the first to occur of (i) the
date on which the Liquidation Value (as defined herein) of such Preferred Share
(plus all accrued and unpaid dividends thereon whether or not declared) is paid
to the holder thereof in connection with the liquidation of the Trust or the
redemption of such Preferred Share by the Trust, (ii) the last day of the
quarter preceding the quarter in which such Preferred Shares are converted into
shares of Common Stock hereunder if such date is after the record date for the
Regular Quarterly Dividend (as defined herein) on the Common Stock for the
quarter in which such conversion takes place, (iii) the last day of the quarter
second preceding the quarter in which such Preferred Shares are converted into
shares of Common Stock hereunder if such date is prior to the record date for
the Regular Quarterly Dividend on the Common Stock for the quarter in which such
conversion takes place, or (iv) the date on which such share is otherwise
acquired and paid for by the Trust.
(b) Cumulative Dividends. Each of such dividends shall be
fully cumulative, to the extent not previously paid. Any accrued dividend that
is not paid, or made available for payment, on the date set forth in Section
2(a) above shall accrue dividends at the Applicable Dividend Rate until such
amount has been paid. Any dividend payment with respect to the Preferred Shares
shall first be credited against any prior accrued and unpaid dividend. No
dividends shall be set apart for or paid upon the Common Stock or any other
shares of stock ranking junior in respect of dividends and distributions of
assets upon liquidation to the Preferred Shares unless all such cumulative
dividends on the Preferred Shares have been paid.
(c) Applicable Dividend Rate. With respect to any Preferred
Share issued and outstanding, the "Applicable Dividend Rate" shall be the
greater of (i) $0.295 per Preferred Share, per quarter, and (ii) the product of
1.05 and the per share quarterly dividend paid in that quarter in respect of the
Common Stock of the Trust (adjusted to reverse the effect of any event set forth
in Section 7 that would require an adjustment to
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<PAGE> 27
the Conversion Ratio (as defined herein)). The Applicable Dividend Rate shall be
prorated for the actual number of days in any partial quarter.
(d) Pro Rata Distribution. All dividends paid with respect to
Preferred Shares pursuant to this Section 2 shall be paid pro rata in respect of
each Preferred Share entitled thereto. In the event that the Legally Available
Funds available for the payment of dividends shall be insufficient for the
payment of the entire amount of dividends payable with respect to Preferred
Shares on any date on which the Board has declared the payment of a dividend or
otherwise, the amount of any available surplus shall be allocated for the
payment of dividends with respect to the Preferred Shares and any other shares
of capital stock that are pari passu as to dividends pro rata based upon the
amount of accrued and unpaid dividends of such shares of capital stock.
(e) Business Day. For purposes of this Annex A, the term
"Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in New York City are authorized
or obligated by law or executive order to close.
Section 3. Preferred Shares--Certain Restrictions. Unless the
dividends (including accrued and unpaid dividends in arrears whether or not
declared) described above in Section 2, which pursuant to their terms should
have been paid, have been paid in full or declared and set apart for payment,
the Trust shall be prohibited from paying dividends on, making any other
distributions on, or redeeming or purchasing or otherwise acquiring for
consideration any capital stock of the Trust (without regard to its rank, either
as to dividends or upon liquidation, dissolution or winding up). The Trust shall
not permit any subsidiary or subpartnership of the Trust to purchase or
otherwise acquire for consideration or make any payment with respect to any
shares of capital stock of the Trust if the Trust is prohibited from purchasing
or otherwise acquiring for consideration or making any payment with respect to
such shares at such time and in such manner pursuant to the prior sentence;
provided, however, that the Trust shall not be prohibited from making a capital
contribution of capital stock of the Trust to any of its subsidiaries or
subpartnerships or from issuing shares of Common Stock upon conversion of any
operating partnership units or similar securities issued by any subsidiary or
subpartnership.
Section 4. Preferred Shares--Voting Rights.
(a) General. Except as limited by law or as specifically
provided herein, the holders of the Preferred Shares shall be entitled to vote
or consent on all matters submitted to the holders of Common Stock, together
with the holders of the
A-3
<PAGE> 28
Common Stock and the holders of any other classes or series of stock which are
entitled to vote on such matter, as a single class and not as a separate class.
(b) Calculation of Votes. For the purposes of calculating the
votes cast for a particular matter when voting or consenting pursuant to Section
4(a), each Preferred Share will entitle the holder thereof to one vote for each
share of Common Stock into which such Preferred Share is convertible as provided
in Section 7 herein as of the record date for such vote or consent or, if no
record date is specified, as of the date of such vote or consent.
(c) Section 4(c) Trustees. In addition to the other voting
rights described herein, so long as Five Arrows Realty Securities L.L.C., an
affiliate thereof, a successor in which the current members of Five Arrows
Realty Securities L.L.C. own greater than a majority interest of such successor,
or a member of Five Arrows Realty Securities L.L.C., is the holder of either (A)
all of the outstanding Preferred Shares or (B) an amount of the voting
securities of the Trust which, if converted into shares of Common Stock, would
exceed 7.5% of the outstanding Common Stock on a fully diluted basis (determined
on the basis of then convertible, exercisable or exchangeable securities,
warrants or options issued by the Trust (such amount as set forth in clauses (A)
and (B) above, the "Minimum Threshold")), then in each such case, (i) the number
of trustees constituting the Board shall be automatically increased by one (1)
member and (ii) upon the occurrence of any of (x) the payment of the Regular
Quarterly Dividend on the Common Stock for any quarter of less than $.28 per
share (adjusted to reverse the effect of any event set forth in Section 7 that
would require an adjustment to the Conversion Ratio (the "Dividend Reduction
Default")), (y) the Trust's ratio of its Consolidated EBITDA to its reported
interest expense (as described in clause (2) under the definition of
Consolidated EBITDA below) for each of three consecutive fiscal quarters was
less than 1.25 to 1.00 (the "Earnings Default"), or (z) the Trust fails to pay
in full the quarterly dividend payable hereunder (whether or not declared) at
any time in respect- of the Preferred Shares (the "Dividend Payment Default),
then, in the case of any of the events described in clauses (x), (y), or (z),
the Board shall be automatically increased by an additional one (1) member for
an aggregate increase of two (2) trustees pursuant to clauses (i) and (ii) of
this Section 4(c). The position on the Board established pursuant to clause (i)
of this Section 4(c) shall remain available until the Minimum Threshold is no
longer satisfied and shall not be available at any time thereafter. The position
on the Board established pursuant to clause (ii) of this Section 4(c) shall
remain available until the earlier of (i) the date on which the Minimum
Threshold fails to be satisfied and (ii) the Dividend Reduction/Earnings Cure
(as defined herein). Any trust~e elected~ pursuant to this section shall be
deemed to have resigned upon the position created hereby not being available and
shall promptly tender a written resignation if so requested.
A-4
<PAGE> 29
The term "Regular Quarterly Dividend" means any cash dividend
or dividends paid in any calendar quarter that do not in the aggregate exceed
the Trust's reported Funds From Operations (as defined by the National
Association of Real Estate Investment Trusts prior to 1996) for the quarter
relating to such dividend.
The term "Consolidated EBITDA" means the consolidated net
income of the Trust (before extraordinary income or gains) as reported in its
Quarterly Report on Form 10-Q under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or otherwise furnished to holders of Preferred
Shares pursuant to Section 4(m) increased (to the extent deducted in determining
consolidate net income) by the sum of the following (without duplication)
(1) all income and state franchise taxes paid or
accrued according to Generally Accepted Accounting Principals
("GAAP") for such period (other than income taxes attributable
to extraordinary, unusual or nonrecurring gains or losses
except to the extent that such gains were not included in
Consolidated EBITDA),
(2) all interest expense paid or accrued in
accordance with GAAP for such period (including financing fees
and amortization of deferred financing fees and amortization
of original issue discount),
(3) depreciation and depletion reflected in such
reported net income,
(4) amortization reflected in such reported net
income including, without limitation, amortization of
capitalized debt issuance costs (only to the extent that such
amounts have not been previously included in the amount of
Consolidated EBITDA pursuant to clause (2) above), and
(5) any other non-cash charges or discretionary
prepayment penalties, to the extent deducted from consolidated
net income (including, but not limited to, income allocated to
minority interests).
(d) Section 4(d) Trustees. If, at any time, (i) the rights
granted pursuant to Section 4(c) shall no longer be available, (ii) any persons
designated to serve on the Board pursuant to Section 4(c) shall have resigned as
required by the terms of Section 4(c) and (iii) a Dividend Payment Default shall
have occurred for three consecutive quarters, the number of trustees
constituting the Board shall be automatically increased by two (2) members. The
position on the Board created pursuant to this Section 4(d) shall
A-5
<PAGE> 30
continue to be available until the earlier of (i) the date on which there are no
Preferred Shares of the Trust outstanding and (ii) the date on which the
Dividend Payment Cure (as defined herein) is effected. Any trustee elected
pursuant to this section shall be deemed to have resigned upon the position
created hereby not being available and shall promptly tender a written
resignation if so requested.
(e) Election of Preferred Trustees. The holders of the
Preferred Shares shall have the special right, voting separately as a single
class, to elect as soon as practical, a trustee to file each vacancy created
pursuant to Section 4(c) or 4(d) and to elect their respective successors at
each succeeding annual meeting of the Trust thereafter at which such successor
is to be elected. The trustee so elected from time to time in respect of clause
(i) of Section 4(c) shall be referred to herein as the "Section 4(c)(i)
Trustee." The trustee so elected from time to time in respect of clause (ii) of
Section 4(c) shall be referred to herein as the "Section 4(c)(ii) Trustee." The
trustees so elected from time to time in respect of Section 4(d) shall be
referred to herein as the Section 4(d) Trustees As used herein, the term
"Preferred Trustee shall refer to each of the Section 4(c)(i) Trustee the
Section 4(c)(ii) Trustee or a Section 4(d) Trustee, as appropriate. and the term
"Preferred Trustees shall refer to all such trustees.
(f) Classification of Board. Each vacancy created upon the
Board from time to time pursuant to cause (i) or (ii) of Section 4(c) or Section
4(d), as the case may be, shall if the Trust shall have a classified board of
trustees, be apportioned among the classes of trustees in nearly as equal a
number as possible.
(g) Cure. Upon the occurrence of a Dividend Reduction Default
or an Earnings Default, the same shall be deemed to continue to exist until such
time as (the "Dividend Reduction/Earnings Cure") (i) the Regular Quarterly
Dividend paid in the immediately preceding quarter on the Common Stock shall be
greater than S.28 per share (adjusted to reverse the effect of any event set
forth in Section 7 that would require an adjustment to the Conversion Ratio),
(ii) the Trust reports for the prior three consecutive fiscal quarters that the
ratio of its Consolidated EBITDA to its reported interest expense (as described
in clause (2) under the definition of Consolidated EBITDA above) for each such
quarter was greater than 1.25 to 1.00, and (iii) all accrued and unpaid
dividends, whether or not declared, on the Preferred Shares have been paid or
made available for payment. Upon the occurrence of the Dividend Payment Default,
the same shall be deemed to continue and exist until (the Dividend Payment
Cure") such time as the earlier to occur of (i) none of the Preferred Shares
shall remain outstanding and (ii) all accrued and unpaid dividends, whether or
not declared, on the Preferred Shares have been paid or made available for
payment.
A-6
<PAGE> 31
(h) Board Committees. The 4(c)(i) Trustee shall be designated
as a member of every committee of the Board.
(i) Voting Procedures. At each meeting of the stockholders of
the Trust at which the holders of the Preferred Shares shall have the right to
vote as a single class as provided in this Section 4, the presence in person or
by proxy of the holders of record of a majority of the total number of Preferred
Shares then outstanding shall be necessary and sufficient to constitute a quorum
of such class for such election by such stockholders as a class. At any such
meeting or adjournment thereof, (x) the absence of a quorum of holders of
Preferred Share shall not prevent the election of trustees other than the
Preferred Trustees, and the absence of a quorum of the holders of any other
class or series of stock for the election o~ such other trustees shall not
prevent the election of any Preferred Trustees by the holders of the Preferred
Shares, and (y) in the absence of a quorum of the holders of the Preferred
Shares, a majority of the holders present or by proxy shall, subject to
applicable law; have the power to adjourn the meeting after all other business
has been concluded from time to time and place to place without notice other
than announcement at the meeting until a quorum shall be present.
(j) Vacancy. In case any vacancy shall occur among the
Preferred Trustees such vacancy shall be filled by the vote of holders of a
majority of the Preferred Shares, voting as a single class, present and voting,
in person or by proxy, at a special meeting of such stockholder called for that
purpose.
(k) Written Consent. Notwithstanding the foregoing, any action
required or permitted to be taken by holders of Preferred Shares at any meeting
of stockholders may be taken without a meeting, without prior notice and without
a vote, if a consent, in writing, setting forth the action so taken, shall be
signed by the holders of Preferred Shares who would have been sufficient to
approve such action at a meeting duly held and shall be executed and delivered
to the Secretary of the Trust for placement among the minutes of proceedings of
the stockholders of the Trust.
(l) Restrictions. So long as any Preferred Shares of the Trust
are outstanding, without the consent of the holders of at least a majority of
the Preferred Shares at the time outstanding, given in person or by proxy, at a
meeting called for that purpose at which the holders of the Preferred Shares
shall vote separately as a class, or by the unanimous consent in writing of all
of the holders of the Preferred Shares, the Trust may not (i) effect or validate
the amendment, alteration or repeal of any provision of these Articles
Supplementary, (ii) effect or validate the amendment, alteration or repeal of
any provision of the Declaration which would adversely effect the rights of the
holders of the Preferred Shares as such, (iii) other than as required to
maintain the status of the Trust
A-7
<PAGE> 32
as a real estate investment trust (or to prevent the Company from becoming a
Pension-held REIT) as described in Section 856 of the Internal Revenue Code of
1986, as amended, effect or validate the amendment, alteration or repeal of any
provision of the Declaration which would increase in any respect the
restrictions or limitations on ownership applicable to the Preferred Shares
pursuant thereto, (iv) effect or validate the amendment, alteration or repeal of
any provision of the Declaration or By-Laws of the Trust in a manner which would
make the right to indemnification provided to any present or future Preferred
Trustee materially different from that provided to other members of the Board,
(v) other than the 2,000,000 Preferred Shares authorized herein, issue Preferred
Shares (or a series of preferred stock that would vote as a class with the
Preferred Shares with respect to the election of any Preferred Trustee) or
shares of stock ranking senior or equal to the Preferred Shares (as to dividends
or upon liquidation, dissolution or winding up), or (vi) effect or validate the
amendment, alteration or repeal of any provision of the Declaration or By-Laws
of the Trust so as to increase the number of members of the Board beyond twelve
(12) members (nat including any Preferred Trustees). Nothing in this Section
4(1) shall prevent the Trust from (i) issuing any shares of stock of the Trust
which rank junior (as to dividends and upon liquidation, dissolution or winding
up) to the Preferred Shares upon such terms as the Board shall authorize from
time to time, (ii) changing the domicile of the Trust, or (iii) changing the
Trust's form from a corporation to a statutory business trust.
(m) Reports. The Trust shall mail to each holder of record of
Preferred Shares, at such holder's address in the records of the Trust, within
45 days after the end of the first three fiscal quarters of each fiscal year and
within 90 days after the end of each fiscal year, its financial reports for such
fiscal period in such form and containing such independent accountants report as
set forth under the rules of the Securities and Exchange Commission (the
"Commission") (together with tho report of the Trust's independent accountants
with respect to such fiscal period) irrespective of whether the Trust is then
required to file reports under such rules; provided, however, that (i) such
independent accountants report need only be provided in connection with the
fiscal year end report and (ii) in the event that the Trust has duly filed a
Form 12b-25 under the Exchange Act with the Commission in respect of any
financial report, the Trust may provide such financial report to the holders of
the Preferred Shares within the time period specified by Rule 12b-25 under the
Exchange Act.
(n) Compensation. Except to the extent that the Board may
otherwise determine hereafter, the Preferred Trustees shall not be entitled to
receive any compensation, in cash or kind, in connection with their service as a
trustee of the rust; provided, that, the indemnification or insurance provided
by the Trust to its trustees shall not be deemed "compensation" for these
purposes.
A-8
<PAGE> 33
Section 5. Preferred Share-Redemption.
(a) General. Subject to Section 8, the Trust may, at its
option, to the extent X shall have Legally Available Funds therefor, redeem all
(but not less than all) of the outstanding Preferred Shares, at any time on or
after the date which is the fifth anniversary of the original date of issuance
of Preferred Shares.
(b) Notice. The option of the Trust to redeem the Preferred
Shares pursuant to this Section S shall be exercised by mailing of a written
notice of election by the Trust to the holders of the Preferred Shares at such
holder's address appearing in the records of the Trust, which notice shall be
sent at least 30 days prior to tho date specified therein for the redemption of
the Preferred Shares. Such notice shall state, at a minimum, the date on which
such redemption shall occur and the last date on which such holder can exercise
the conversion rights provided for in Section 7 herein (the "final Conversion
Date").
(c) Conversion. During the period beginning on the date on
which each holder of the Preferred Share receives such a written notice of
election pursuant to subsection (b) above and ending on the thirtieth day
following the mailing of such notice, each holder of the Preferred Shares may
exercise its rights pursuant to Section 7 herein.
(d) Redemption Price. On the redemption date specified in the
redemption notice (which shall not be less than 30 days after the mailing of
such notice), the Trust shall be required, unless such holder of Preferred
Shares has exercised its rights pursuant to subsection (c) above. to purchase
from such holder of Preferred Shares (upon surrender by such holder at the
Trust's principal office of the certificate representing such Share), such
Preferred Shares, at a price equal to the product of (i) $12.50 per share plus
accrued and unpaid dividends (whether or not declared and accrued through. but
not including, the date of payment for redemption or the date payment is made
available for payment to the holder thereof), plus a premium equal to the
following percentage of $12.50:
<TABLE>
<CAPTION>
Redemption Occurs
On or After But Prior to % Premium
- ----------- ------------ ---------
<S> <C> <C>
December 31, 2001 December 31, 2003 6.0
December 31, 2003 December 31. 2005 5.0
December 31, 2005 December 31, 2007 4.0
December 31, 2007 December 31, 2009 3.0
December 31, 2009 December 31, 2010 2.0
December 31, 2010 December 31, 2011 1.0
December 31, 2011 0.0
</TABLE>
A-9
<PAGE> 34
and (ii) the number of Preferred Shares held by such holder to be redeemed (the
"Redemption Price").
(e) Dividends. No Preferred Share is entitled to any dividends
accruing thereon after the date on which the payments provided by and in
accordance with Section 5(d) are paid or made available for payment to the
holder thereof. On such date all rights of the holder of such Preferred Share
shall cease, and such Preferred Share shall not be deemed to be outstanding.
(f) In addition to the redemption provisions set forth in this
Section 5, if a Change of Control occurs, the Trust will have the right to
redeem the Preferred Shares as provided in Section 8(a).
Section 6. Preferred Shares--Liquidation. Dissolution or
Winding Up.
(a) Liquidation Payment. In the event of any liquidation,
dissolution or winding up of the Trust, then out of the assets of the Trust
before any distribution or payment to the holders of shares of capital stock of
the Trust ranking junior to the Preferred Shares (as to dividends or upon
liquidation, dissolution or winding up), the holders of the Preferred Shares
shall be entitled to be paid $12.50 per share (the "Liquidation Value") plus
accrued and unpaid dividends whether or not declared (or a pro rata portion
thereof with respect to fractional shares); provided, however, that if such
liquidation, dissolution or winding up of the Trust occurs in connection with or
subsequent to a Change of Control (as defined in Section 8), then the holders of
the Preferred Shares shall be entitled to be paid the Put Payment (as defined
herein). Except as provided in this Section 6, the holders of the Preferred
Shares shall be entitled to no other or further distribution in connection with
such liquidation, dissolution or winding up. A merger or consolidation alone, in
which the Trust is a constituent party, shall not be deemed to be a liquidation,
dissolution or winding up hereunder; provided that (i) the Trust is the
surviving entity of such merger or consolidation and (ii) the Preferred Shares
shall not have been adversely affected thereby. Additionally, a transaction. the
sole purpose of which is that the Trust is seeking to change its domicile or to
change its form from a corporation to a statutory business trust shall not be
deemed to be a liquidation, dissolution or winding up hereunder.
(b) Pro Rata Distribution. If, upon any liquidation,
dissolution or winding up of the Trust, the assets of the Trust available for
distribution to the holders of Preferred Shares shall be insufficient to permit
payment in full to such holders the sums which such holders are entitled to
receive in such case. then all of the assets available for distribution to the
holders of the Preferred Shares shall be distributed among and paid to
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<PAGE> 35
the holders of Preferred Shares, ratably in proportion to the respective amounts
that would be payable to such holders if such assets were sufficient to permit
payment in full.
Section 7. Preferred Shares--Conversion.
(a) Conversion Rights. Subject to and upon compliance with the
provisions of this Section 7, a holder of Preferred Shares shall have the right,
at such holders' option, at any time to convert all or a portion of such shares
into the number of fully paid and non-assessable shares of Common Stock obtained
by dividing the number of Preferred Shares being converted by the Conversion
Ratio (as in effect at the time and on the date provided for in the last
paragraph of paragraph (b) of this Section 7) and by surrendering to the Trust
such Preferred Shares to be convened. Such surrender shall be made in the manner
provided in Section 7, paragraph (b); provided, however, that the right to
convert any Preferred Shares called for redemption pursuant to Section 5 shall
terminate at the close of business on the Final Conversion ~, unless the Trust
shall default in making payment of any cash payable upon such redemption under
Section S hereof. The Conversion Ratio with respect to any Preferred Shares will
initially be equal to 1, subject to adjustment as described below.
(b) Manner of Conversion.
(i) In order to exercise the conversion right, the holder of each
Preferred Share to be converted shall surrender to the Trust the certificate
representing such share, duly endorsed or assigned to the Trustor in blank,
accompanied by written notice to the Trust that the holder thereof elects to
convert such Preferred Shares. Unless the shares of Common Stock issuable on
conversion are to be issued in the same name as the name in which such in
Preferred Shares are registered, each Preferred Share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Trust, duly executed by the holder or such holder's duly authorized attorney.
(ii) Holders of Preferred Shares shall be entitled on the date of
conversion of any Preferred Shares to receive all accumulated and unpaid
dividends provided for pursuant to Section 2.
(iii) As promptly as practicable after the surrender of certificates of
Preferred Shares as aforesaid. the Trust shall issue and shall deliver at such
office to such holder, or on such holder's written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Preferred Shares in accordance with the provisions of this
Section 7, and any fractional interest in respect of a share of Common Stock
arising upon such conversion shall be settled as provided in paragraph (c) of
this Section 7 and shall pay the amounts provided under Section 7(b) (ii).
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(iv) Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which certificates for Preferred
Shares have been surrendered and such notice received by the Trust as aforesaid,
and the person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the shares represented
thereby at such time on such date and such conversion shall be at the Conversion
Ratio in effect at such time on such date unless the stock transfer books of the
Trust shall be closed on that date, in which event such conversion shall have
been deemed to have been effected and such person or persons shall be deemed to
have become the holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open, but such conversion
shall be at the Conversion Ratio in effect on the date on which such shares
shall have been surrendered and such notice received by the Trust.
(c) Fractional Shares. No fractional shares or scrip
representing fractions of shares of Common Stock shall be issued upon conversion
of the Preferred Shares. Instead of any fractional interest in a share of Common
Stock that would otherwise be deliverable upon the conversion of Preferred
Shares. the Trust shall pay to the holder of such share an amount in cash based
upon the Current Market Price (as defined herein) of Common Stock on the Trading
Day (as defined herein) immediately preceding the date of conversion. n more
than one Preferred Share shall be surrendered for conversion at one time by the
share holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Preferred
Shares so surrendered.
(d) Adjustment of Conversion Ratio. The Conversion Ratio shall
be adjusted from time to time as follows:
(i) It the Trust shall, while any Preferred Shares
are outstanding, (A) pay a dividend or make a distribution with respect to its
capital stock in shares of its Common Stock. (B) subdivide its outstanding
Common Stock into a greater number of shares, (C) combine its outstanding Common
Stock into smaller number of shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the Conversion Ratio in effect at the
opening of business on the day next following the date fixed for the
determination of shareholders entitled to receive such dividend or distribution
or at the opening of business on the day following the day on which such
subdivision, combination or reclassification becomes effective, as the case may
be, shall be adjusted so that the holder of any Preferred Shares thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock that such holder would have owned or have been entitled to receive
after the happening of any of the events described above had such Preferred
Shares been converted immediately prior to the record date in
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the case of a dividend or distribution or the effective date in the ___ of a
subdivision, combination or reclassification. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the opening of
business on the day next following the record date (except as provided in
paragraph (h) below) in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the day next following
the effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Trust shall, while any Preferred Shares
are outstanding, issue rights, options or warrants to all holders of Common
Stock entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Stock at a price per share
less than the Current Market Price per share of Common Stock on the record date
for the determination of shareholders entitled to receive such rights or
warrants, then the Conversion Ratio in effect at the opening of business on the
day next following such record date shall be adjusted to equal the ratio
determined by multiplying (I) the Conversion Ratio in effect immediately prior
to the opening of business on the day next following the date fixed for such
determination by (II) a fraction, the numerator of which shall be the sum of (A)
the number of shares of Common Stock outstanding on the close of business on the
date fixed for such determination (without giving effect to such issuance) and
(B) the number of shares that the aggregate proceeds to the Trust from the
exercise of such rights or warrants for Common Stock would purchase at such
Current Market Price, and the denominator of which shall be the sum of (A) the
number of Shares of Common Stock outstanding on the close of business on the
date fixed for such determination (without giving effect to such issuance) and
(B) the number of additional shares of Common Stock offered for subscription or
purchase pursuant to such rights or warrants. Such adjustment shall become
effective immediately after the opening of business on the day next following
such record date (except as provided in paragraph (h) below). In determining
whether any rights or warrants entitle the holders of Common Stock to subscribe
for or purchase shares of Common Stock at less than such Current Market Price,
there shall be taken into account any consideration received by the Trust upon
issuance and upon exercise of such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of Trustees.
(iii) If the Trust shall distribute to all holders of
its Common Stock any shares of capital stock of the Trust (other than Common
Stock) or evidence of its Indebtedness or assets (excluding Regular Quarterly
Dividends and excluding distributions referred to in (i) above) or rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights and warrants issued to all holders of Common Stock entitling them for a
period expiring within 45 days after the record date referred to in subparagraph
(ii) above to subscribe for or purchase Common Stock. which rights and
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warrants are referred to in and treated under subparagraph (ii) above) (any of
the foregoing being hereinafter in this subparagraph (iii) called the
"Securities"), then in each such case each holder of Preferred Shares shall
receive concurrently with the receipt by holders of the Common Stock the kind
and amount of such Securities that it would have owned or been entitled to
receive had such Preferred Shares been converted immediately prior to such
distribution or related record date. as the case may be.
(iv) Distribution of Cash. In case the Trust shall
pay or make a dividend or other distribution on its Common Stock exclusively in
cash (excluding Regular Quarterly Dividends), each holder of Preferred Shares
shall receive concurrently with the receipt by holders of the Common Stock the
kind and amount of any such distribution that it would have owned or been
entitled to receive had such Preferred Shares been converted immediately prior
to such distribution or related record date, as the case may be.
(v) No adjustment in the Conversion Ratio shall be
required unless such adjustment would require a cumulative increase or decrease
of at least .5%; provided, however, that any adjustments that by reason of this
subparagraph (v) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment until made. Notwithstanding any other
provisions of this Section 7. the Trust shall not be required to make any
adjustment of the Conversion Ratio for (x) the issuance of any shares of Common
Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Trust and the investment of additional
optional amounts in shares of Common Stock pursuant to any plan providing for
the reinvestment of dividends or interest payable on securities of the Trust and
the investment of additional optional amounts in shares of Common Stock under
such plan, (y) the issuance of contingent rights issued pursuant to a
stockholders' rights plan adopted by the Trust pursuant to which the acquisition
by any third party of a specified percentage of Common Stock triggers the
exercisability of such rights to purchase Common Stock, for so long as no event
has occurred triggering such rights to exercise or the issuance of shares of
Common Stock upon conversion of currently outstanding operating partnership
units, and (z) the issuance of Common Stock or options to purchase Common Stock(
pursuant to an employee benefit plan. All calculations under is Section 7 shall
be made to the nearest cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded upward). as the case may
be. Anything in this paragraph (d) to the contrary notwithstanding, the Trust
shall benefitted, to the extent permitted by law, to make such reductions in the
Conversion Ratio, in addition to those required by this paragraph (d), as it in
its discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, reclassification or combination of shares, distribution
of rights or warrants to purchase stock or securities, or a distribution of
other assets (other than cash dividend) here be made by the Trust to its
shareholders
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shall not be taxable, or if that is not possible, to diminish any income taxes
that are otherwise payable because of such event.
(e) Adjustment of Conversion Ratio Upon Certain Transactions.
If the Trust shall be a party to any transaction (including, without limitation,
a merger, consolidation. statutory share exchange, self tender offer for all or
substantial~y all shares of Common Stock, sale of all or substantially all of
the Trusts, assets or recapitalization of the Common Stock and excluding any
transaction as to which subparagraph (d) of this Section 7 applies) (each of the
foregoing being referred to herein as a transaction"), in each case a result of
which shares of Common Stock shall be converted into the right to receive stock,
securities of other property including cash or any combination thereof') of
another corporation, each Preferred Share that not ______ to the right to
receive stock, securities or other property in connection with such Transaction
shall thereafter be convertible into the kind and amount of shares of stock;
_____ and other property (including cash or any combination thereof receivable
upon the assumption such Transaction by a holder of that number of shares Common
Stock into which one Preferred Share was convertible immediately prior to such
Transaction, assuming such holder of Common Stock (__ is not a person with which
____ Trust consolidated or into which the Trust merged or which merged into the
Trust to which such _______ was made, as the case may-be ("Constituent Person")
or an affiliate of a Constituent Person or (ii) failed to exercise his or her
rights of election, if any, as to the kind or amount of stock, securities and
other property (including cash) receivable upon such Transaction (provided that
if the kind or amount of stock, securities and other property (including cash)
receivable upon such Transaction is not same for each share of Common Stock of
the Trust t held immediately prior to such Transaction by other than a
Constituent Person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-electing Share), then for the
purpose paragraph (e) the kind and amount of stock,. securities-and other
property (including cash) receivable upon such Transaction by each No electing
Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-electing Shares). The Trust shall not be a party to any
Transaction unless the terms of-such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Trust has entered into an agreement with
the successor or purchasing entity, as the case may be, for the benefit of the
holders of the Preferred Shares that will contain provisions enabling the
holders of the Preferred Shares that remain outstanding after such Transaction
to convert into the consideration received by holders of Common Stock at the
Conversion Ratio in effect immediately prior to such Transaction. The provisions
of this paragraph (e) shall similarly apply to successive Transactions.
(f) Notice of Certain Events. If:
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(i) the Trust shall declare a dividend (or any other
distribution) on the Common Stock (other than the Regular Quarterly Dividend);
or
(ii) the Trust shall authorize the granting to the
holders of Common Stock of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification of the
Common Stock (other than any event to which subparagraph (d) (i) of this Section
7 applies) or any consolidation or merger to which the Trust is a party and for
which approval of any shareholders of the Trust is required, or a statutory
share exchange, or self tender offer by the Trust for all or substantially all
of its outstanding shares of Common Stock or the sale or transfer of all or
substantially all of the assets of the Trust as an entity; or
(iv) there shall occur the involuntary liquidation,
dissolution or winding up of the Trust, then, in each such case, the Trust shall
cause to be mailed to the holders of Preferred Shares. at the address as shown
on the stock records of the Trust, as promptly as possible. but at least 15
Business Days prior to the applicable date hereinafter specified, a notice
stating (A) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights or warrants are to be determined or (B)
the date on which such reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property, if any, deliverable upon such reclassification, consolidation
merger, statutory share exchange, sale, transfer, liquidation, dissolution or
winding up. Failure to give or receive such notice or any defect therein shall
not affect the legality or validity of the proceedings described in this Section
7.
(g) Notice of Adjustment of Conversion Ratio. Whenever the
Conversion Ratio is adjusted as herein provided, the Trust shall prepare a
notice of such adjustment of the Conversion Ratio setting forth the adjusted
Conversion Ratio and the effective date of such adjustment and shall mail such
notice of such adjustment of the Conversion Ratio to the holders of the
Preferred Shares at such holders last address as shown on the stock records of
the Trust.
(h) Timing of Adjustment. In any case in which paragraph (d)
of this Section 7 provides that an adjustment shall become effective on the day
next following the record date for an event, the Trust may defer until the
occurrence of such event (A)
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issuing to the holder of Preferred Shares converted after such record date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any amount of cash in
lieu of any fraction pursuant to paragraph (c) of this Section 7.
(i) No Duplication of Adjustments. There shall be no
adjustment of the Conversion Ratio in case of the issuance of any stock of the
Trust in a reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 7. If any action or transaction would
require adjustment of the Conversion Ratio pursuant to more than one paragraph
of this Section 7, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that has the highest absolute value.
(j) Other Adjustments to Conversion Ratio. If the Trust shall
take any action affecting the Common Stock, other than action described in this
Section 7, that would materially adversely affect the conversion rights of the
holders of the Preferred Shares or the value of such conversion rights, the
Conversion Ratio for the Preferred Shares may be adjusted, to the extent
permitted by law, in such manner if any, and at such time, as the Board of
Trustees, in its sole discretion, may determine to be equitable in the
circumstances.
(k) Reservation, Validity, Listing and Securities Law
Compliance with respect to Shares of Common Stock.
(i) The Trust covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued shares of Common Stock for the purpose of effecting
conversion of the Preferred Shares, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding Preferred Shares not
therefore converted. Before taking any action which would cause an adjustment in
the Conversion Ratio such that Common Stock issuable upon the conversion of
Preferred Shares would be issued below par value of the Common Stock, the Trust
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Trust may validly and legally issue fully-paid and
nonassessable shares of Common Stock at such adjusted Conversion Ratio.
(ii) The Trust covenants that any shares of Common
Stock issued upon the conversion of the Preferred Shares shalt be validly
issued, fully paid and nonassessable
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(iii) The Trust shall endeavor to list the shares of
Common Stock required to be delivered upon conversion of the Preferred Shares,
prior to such delivery, upon each national securities exchange. if any, upon
which the outstanding Common Stock is listed at the time of such delivery.
(iv) Prior to the delivery of any securities that the
Trust shall be obligated to deliver upon conversion of the Preferred Shares, the
Trust shall endeavor to comply with all federal and state laws and regulations
thereunder requiring the registration of such securities with, or any approval
of or consent to the delivery thereof, by any governmental authority.
(l) Transfer Taxes. The Trust will pay any and all documentary
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Common Stock or other securities or property on conversion
of the Preferred Shares pursuant hereto; provided, however, that the Trust shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock or other securities
or property in a name other than that of the holder of the Preferred Shares to
be converted, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Trust the amount of any
such tax or established, to the reasonable satisfaction of the Trust, that such
tax has been paid.
(m) Certain Defined Terms. The following definitions shall
apply to terms used in this Section 7:
(1) Current Market Price. For the purpose of any computation
under this Section 7, the Current Market Price per share of Common Stock on any
date in question shall be deemed to be the average of the daily closing prices
for the five consecutive Trading Days immediately preceding such date in
question; provided, however, that if another event occurs that would require an
adjustment pursuant to subsection (f) through (j), inclusive, the Board may make
such adjustments to the closing prices during such five Trading Day period as it
deems appropriate to effectuate the intent of the adjustments in this Section 7,
in which case any such determination by the Board shall be set forth in a
resolution of the Board and shall be conclusive.
(2) "Trading Day" shall mean a day on which Preferred Shares
are traded on the national securities exchange or quotation system used to
determine the closing price.
Section 8. Preferred Shares--Change of Control Put Option and
REIT Put Option.
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(a) In addition to the redemption provisions of Section 5, H
on or before December 31, 2001, an event or transaction will result in a Change
of Control (as defined herein), the Trust may, at its option, to the extent it
shall have Legally Available Funds therefor, redeem all (but not less than all)
of the outstanding Preferred Shares on the date of such Change of Control. The
right of the Trust to redeem the Preferred Shares pursuant to this Section 8(a)
shall be exercised by mailing a written notice of election by the Trust to the
holders of Preferred Shares at such holder's address appearing in the records of
the Trust to the extent practicable, not less than 30 days prior to the date of
the Change of Control. During the period beginning on the date such notice is
mailed and ending on the date seven days prior to the date of such Change of
Control, each holder of Preferred Shares may exercise its right to convert
pursuant to Section 7 herein (which exercise shall, unless otherwise indicated,
be conditioned upon the occurrence of the specified Change of Control). On the
date of the Change of Control, the Trust shall be required, unless such holder
of Preferred Shares has exercised its right to convert pursuant to the prior
sentence, to purchase from such holder of Preferred Shares (upon surrender by
such holder at the Trust's principal office of the certificate representing such
share), such Preferred Shares, at a price equal to the product of (i) $13.75
plus accrued and unpaid dividend (accrued through the date of payment for
redemption or the date such payment is made available) and (ii) the number of
Preferred Shares held by such holder to be redeemed. No Preferred Share is
entitled to any dividends accruing after the date on which the payment for such
share is paid or made available for payment to the holder thereof.
(b) If a Change of Control or Put Event occurs each holder of
Preferred Shares will have the right to require that the Trust, to the extent
the Trust shall have Legally Available Funds therefor, to redeem such holder's
Preferred Shares at a redemption price payable in cash in an amount equal to
102% of the Liquidation Value thereof, plus accrued and unpaid dividends
whether- or not declared, if any (the "Put Payment"), to the date of redemption
or the date payment is made available (the "Put Date"), pursuant to the offer
described in subsection (d) below (the "Put Offer"). Upon the expiration of the
Put Offer holders of Preferred Shares shall have no further right to require the
Trust to redeem such holder's Preferred Shares unless and until another Change
of Control or Put Event occurs.
(c) If a REIT Put Event occurs each holder of Preferred Shares
will have the right to require the Trust, to the extent the Trust shall have
Legally Available Funds therefor, to redeem such holder's Preferred Shares at a
redemption price payable in cash in an amount equal to the greater of (i) 110%
of the; Liquidation Value thereof, plus accrued and unpaid dividends whether or
not declare, if any; (ii) 105% of the Current Market Price (as defined in
Section 7(m), plus accrued and unpaid dividends whether or not declared, if any,
and (iii) the difference between the 52-Week Trading High and
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$12.50, plus accrued and unpaid dividends whether or not declared, if any (any
of (i), (ii) or (iii), the "REIT-Put Payment"), to the date of redemption or the
date payment is made available (the "REIT-Put Date"), pursuant to the offer
described in subsection (d) below (the "REIT-Put Offer"). Upon the expiration of
the REIT-Put Offer holders of Preferred Shares shall have no further right to
require the Trust to redeem such holder's Preferred Shares unless and until
another REIT-Put Event occurs. "52-Week Trading High" means, for any date, the
highest per share closing price of the Common Stock for the 52-calendar week
period immediately preceding such date.
(d) Within 15 days following the Trust becoming aware that an
event has occurred that has resulted in any Change of Control. Put Event or
REIT-Put Event. the Trust shall mail a notice to each holder of Preferred
Shares, at such holder's address appearing in the records of the Trust, stating
(i) that a Change of Control. Put Event or REIT-Put Event, as applicable, has
occurred and that such holder has the right to require the Trust to redeem such
holder's Preferred Shares in cash, (ii) the date of redemption (which shall be a
Business Day, no earlier than 30 days and no later than 60 days from the date
such notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (iii) the redemption price for the
redemption, and (iv) the instructions determined by the Trust, consistent with
this subsection, that a holder must follow in order to have its Preferred Shares
redeemed.
(e) On the Put Date or the REIT-Put Date, as applicable, the
Trust will, to the extent lawful, accept for payment Preferred Shares or
portions thereof tendered pursuant to the Put Offer or the REIT-Put Offer, as
applicable, and pay an amount equal to the Put Payment or the REIT-Put Payment.
as applicable, in respect of all Preferred Shares or portions thereof so
tendered. The Trust shall promptly mail to each holder of Preferred Shares to be
redeemed payment in an amount equal to the redemption price for such Preferred
Shares.
(f) Notwithstanding anything else herein, to the extent they
are applicable to any Change of Control Offer, the Trust will comply with
Section 14 of the Exchange Act and the provisions of Regulation 14D and 14E and
any other tender offer rules under the Exchange Act and any other federal and
state securities laws, rules and regulations and all time periods and
requirements shall be adjusted accordingly
(g) "Change of Control" means each occurrence of any of the
following: (i) the acquisition, directly or indirectly, by any individual or
entity or group (as such term is used in Section 13(d)(3) of the Exchange Act)
of beneficial ownership (as defined in Rule 1 3d-3 under the Exchange Act,
except that such individual or entity shall be deemed to have beneficial
ownership of all shares that any such individual or entity has the right to
acquire, whether such right is exercisable immediately or only after passage
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of time) of more than 30% of the aggregate outstanding voting power of capital
stock of the Trust; (ii) other than with respect to election, resignation or
replacement of the Preferred Trustees, during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Trustees of the Trust (together with any new trustees whose election by such
Board of Trustees or whose nomination for election by the shareholders of the
Trust was approved by a vote of 66 2/3% of the trustees of the Trust (excluding
Preferred Trustees) then still in office who were either trustees at the
beginning of such period. or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Trustees of the Trust then in office; and (iii) (A) the Trust
consolidates with or merges into another entity or conveys, transfers or leases
all or substantially all of their respective assets (including, but not limited
to, real property investments) to any individual or entity, or (B) any
corporation consolidates with or merges into the Trust, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting capital
stock of the Trust is reclassified or changed into or exchanged for cash,
securities (unless the holders of the exchanged securities of the Trust
immediately prior to such transaction hold immediately after such transaction at
least a majority of the securities into which such exchange was made) or other
property; provided, however, that the events described in clause (iii) shall not
be deemed to be a Change of Control if the sole purpose of such event is that
tho Trust is seeking to change its domicile or to change its form from a
corporation to a statutory business trust.
(h) "Put Event" means each occurrence of the Trust ceasing to
be engaged primarily in the business of owning and managing triple net leased
properties directly, or through subsidiaries, as carried on as of the date
hereof and described in the Trust's Annual Report on Form 1~K as filed with the
Commission for the year ended December 31, 1995.
(i) "REIT-Put Event" means each occurrence of either of (i)
the Trust fails to qualify as a real estate investment trust as described in
Section 856 of the Internal Revenue Code of 1986. as amended, other than as a
result of any action, or unreasonable failure to act, by the holders of
Preferred Shares; (ii) the Trust becomes a "Pension-held REIT" as defined in
Section 856(h)(3)(D) of the Internal Revenue Code of 1986, as amended, other
than as a result of any action, or unreasonable failure to act, by holders of
Preferred Shares.
Section 9. Preferred Shares--Ownership Limitations.
(a)(1) For the purposes of this Section 9, the following terms
shall have the following meanings:
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"Beneficial Ownership" shall mean ownership of Capital Stock by a
Person who would be treated as an owner of such shares of Capital Stock
either directly or indirectly through the application of Section 544 of
the Code as modified by
Section 856(h)(1)(B) of the Code The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have correlative
meanings:
"Beneficiary" shall mean a beneficiary of the Charitable Trust as
determined pursuant to Section 9(b)(5).
"Board of Trustees" shall mean the Board of Trustees of the Trust.
"By-Laws" shall mean the By-Laws of the Trust.
"Capital Stock" shall mean stock that is Common Stock, Excess Stock or
Preferred Stock, if any.
"Charitable Trust" shall mean the trust created pursuant to Section
9(b)(1).
"Charitable Trustee" shall mean the Trust, acting as trustee for the
Charitable Trust, or any successor trustee appointed by the Trust.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Constructive Ownership" shall mean ownership of Capital Stock by a
Person who would be treated as an owner of such shares of Capital Stock
either directly or indirectly through the application of Section 318 of
the Code. as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned"
shall have correlative meanings.
"Equity Stock" shall mean Common Stock and Preferred Stock in the
aggregate.
"Market Price" on any date shall mean, with respect to the Common
Stock, the average of the daily market price for ten consecutive
trading days immediately preceding the date. The market price for each
such trading day shall be determined as follows: (A) if the Common
Stock is listed or admitted to trading on any securities exchange or
included for quotation on the NASDAQ-National Market System, the
closing price, regular way, on such day, or if no such sale takes place
on such day, the average of the closing bid and asked prices on such
day, as reported by a reliable quotation source designated by the
Trust; (B) if the
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Common Stock is not listed or admitted to trading on any securities
exchange or included for quotation on the NASDAQ-National Market
System, the last reported sale price on such day or, if no sale takes
place on such day, the average of the closing bid and asked prices on
such day, as reported by a reliable quotation source designated by the
Trust; or (C) if the Common Stock is not listed or admitted to trading
on any securities exchange or included for quotation on the
NASDAQ-National Market System and no such last reported sale price or
closing bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as responded by a reliable
quotation source designated by the Trust, or if there shall be no bid
and asked prices on such day, the average of the high bid and low asked
prices, as so reported, on the most recent day (not more than ten days
prior to the date in question) for which prices have been so reported;
provided that if there are no bid and asked prices reported during the
ten days prior to the date in question, the Market Price of the Common
Stock shall be determined by the Trust acting in good faith on the
basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate.
"Ownership Limit" shall mean 9.8% of the value of the outstanding
Equity Stock of the Trust.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17)
of the Code), a portion of a trust permanently set aside for or to be
used exclusively for the purposes described in Section 642(c) of the
Code, association, private foundation within the meaning of Section
509(a) of the Code, joint Stock company or other entity and also
includes a group as that term is used for purposes of Section 1 3(d)(3)
of the Securities Exchange Act of 1934, as amended.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer that results in Excess Stock, the purported
beneficial transferee for whom the Purported Record Transferee would
have acquired shares of Equity Stock it such transfer had been valid
under Section 9(a)(2).
"REIT" shall mean a Real Estate Investment Trust under Section 856 of
the Code.
"Restriction Termination Date" shall mean the first day on which the
Board of Trustees of the Trust determines that it is no longer in the
best interests of the Trust to attempt to, or continue to, qualify as a
REIT.
"Transfer" shall mean any sale, transfer, gift, hypothecation, pledge,
assignment, devise or other disposition of, Capital Stock (including
(i) the granting of any
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option or entering into any agreement for the sale, transfer or the
disposition of Equity Stock or (ii) the sale, transfer, assignment or
other disposition of any securities or rights convertible into or
exchangeable for Capital, Stock, whether voluntary or involuntary,
whether of record. constructively or beneficially and whether by
operation of law or otherwise.
(2)(A) Except as provided in Section 9(a)(9), prior to the
Restriction Termination Date, no Person shall Beneficially Own or Constructively
Own shares of the outstanding Equity Stock In excess of the Ownership Limit; (B)
except as provided in Section 9(a)(9), prior to the Restriction Termination
Date, any Transfer that, if effective, would result in any Person Beneficially
Owning or Constructively Owning Equity Stock in excess of the Ownership Limit
shall be void ab initio as to the Transfer of that number of shares of Equity
Stock which would be otherwise Beneficially or Constructively Owned by such
Person in excess of the Ownership Limit; and the intended transferee shall
acquire no rights in such excess shares of Equity Stock; (C) except as provided
in Section 9(a)(9), prior to the Restriction Termination Date. any Transfer
that, if effective. would result in the Equity Stock's being Beneficially Owned
by fewer than 100 Persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Transfer of that number of shares
which would be otherwise Beneficially or Constructively Owned by the transferee;
and the intended transferee shall acquire no rights in such excess shares of
Equity Stock; and (D) prior to the Restriction Termination Date, any Transfer of
shares of Equity Stock that, if effective, would result in the Trust's being
"closely held" within the meaning of Section 856(h) of the Code shall be void ab
initio as to the Transfer of that number of shares of Equity Stock which would
cause the Trust to be "closely held" within the meaning of Section 856(h) of the
Code; and the intended transferee shall acquire no rights in such shares of
Equity Stock.
(3)(A) If, notwithstanding the other provisions contained in
this Section 9, at any time prior to the Restriction Termination Date, there is
a purported Transfer or other change in the capital structure of the Trust such
that any Person would either Beneficially Own or Constructively Own Equity Stock
in excess of the Ownership Limit, then, except as otherwise provided in Section
9(a)(9), such shares of Equity Stock in excess of the Ownership Limit (rounded
up to the nearest whole share) shall be automatically converted into an equal
number of shares of Excess Stock (such conversion shall be effective as of the
close of business on the business day prior to the date of the Transfer or
change in capital structure); and (B) if, notwithstanding the other provisions
contained in this Section 9, at any time prior to the Restriction Termination
Date, there is a purported Transfer or other change in the capital structure of
the Trust which, if effective, would cause the Trust to become "closely held"
within the meaning of Section 856(h) of the Code, then the shares of Equity
Stock being Transferred or which are otherwise affected by the change in capital
structure and which, in either case, would
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cause the Trust to be "closely held" within the meaning of Section 856(h) of the
Code (rounded up to the nearest whole share) shall be automatically converted
into an equal number of shares of Excess Stock. Such conversion shall be
effective as of the close of business on the business day prior to the date of
the transfer or change in capital structure.
(4) If the Board of Trustees or its designees at any time
determine in good faith that a transfer has taken place in violation of Section
9(a)(2) or that a Person intends to acquire or has attempted to acquire
Beneficial Ownership or Constructive Ownership of any shares of Equity Stock in
violation of Section 9(a)(2), the Board of Trustees or its designees shall take
such action as it or they deem advisable to refuse to give effect to or to
prevent such Transfer, including, but not limited to, refusing to give effect to
such transfer on the books of the Trust or instituting proceedings to enjoin
such Transfer, provided, however, that any Transfers or attempted Transfers in
violation of Section 9(a)(2) shall be void ab initio and automatically result in
the conversion described in Section 9(a)(3), irrespective of any action (or
non-action) by the Board of Trustees or its designees.
(5) Any Person who acquires or attempts to acquire shares of
Equity Stock in violation of Section 9(a)(2), or any Person who is a transferee
such that Excess Stock results under Section 9(a3(3), shall immediately give
written notice to the Trust of such event and shall provide to the Trust such
other information as the Trust may request in order to determine the effect, if
any, of such transfer or attempted transfer on the Trust's status as a REIT.
(6) Prior to the Restriction Termination Date: (A) every
Beneficial Owner or Constructive Owner of 5.0% or more (during any periods in
which the number of such Beneficial Owners or Constructive Owners exceeds 1,999)
or of more than 1% (during any periods in which the number of such Beneficial
Owners or Constructive Owners is less than 2,000), or such lower percentages as
required pursuant to regulations under the Code, of the outstanding Equity Stock
of the Trust shall, within 30 days after January 1 of each year, give written
notice to the Trust stating the name and address of such Beneficial Owner or
Constructive Owner, the number of shares of Equity Stock Beneficially Owned or
Constructively Owned, and a description of how such shares are held. Each such
Beneficial Owner or Constructive Owner shall provide to the Trust such
additional information as the Trust may request in order to determine the
effect, if any, of such Beneficial Ownership on the Trust's status as a REIT and
to ensure compliance with the Ownership Limit; and (B) each Person who is a
Beneficial Owner or Constructive Owner of Equity Stock and each Person
(including the stockholder of record) who is holding Equity Stock for a
Beneficial Owner or Constructive Owner shall provide to the Trust such
information as the Trust may request in order to determine the Trust's status as
a REIT and to ensure compliance with the Ownership Limit.
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(7) Nothing contained in this Section 9 shall limit the
authority of the Board of Trustees to take such other action as it deems
necessary or advisable to protect the Trust and the interests of its
stockholders by preservation of the Trust's status as a REIT and to ensure
compliance with the Ownership Limit.
(8) In the case of an ambiguity in the application of any of
the provisions of Section 9(a), including any definition contained in Section
9(a)(1), the Board of Trustees shall have the power to determine the application
of the provisions of Section 9(a) with respect to any situation based on the
facts known to it.
(9) The Board of Trustees, upon receipt of a ruling from the
Internal Revenue Service or an opinion of counsel or other evidence satisfactory
to the Board of Trustees and upon such other conditions as the Board of Trustees
may direct, in each case provided that the restrictions contained in Section
9(a)(2)(C) and/or Section 9(a)(2)(d) will not be violated, may exempt a Person
from the Ownership Limit.
(10) Legend. Each Preferred Share shall bear the following
Legend:
The shares of preferred stock represented by this certificate are
subject to restrictions on transfer for the purpose of the Trust's
maintenance of its status as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"). No Person may,
without the consent of the Trust, (1) Beneficially Own or
Constructively Own shares of Equity Stock in excess of 9.8% of the
value of the outstanding Equity Stock of the Trust or (2) Beneficially
Own Equity Stock that would result in the Trust's being "closely held"
under Section 856(h) of the Code. Any Person who attempts to
Beneficially Own or Constructively Own shares of Equity Stock in excess
of the above limitations must immediately notify the Trust. All
capitalized terms in this legend have the meanings defined in the
Declaration, as the same may be further amended from time to time, a
copy of which including the restrictions on transfer, will be sent
without charge to each stockholder who so requests. If the restrictions
on transfer are violated, the shares of Equity Stock represented hereby
will be automatically converted for shares of Excess Stock which will
be held in trust by the Trust.
(b) (1) Upon any purported Transfer that results in Excess Stock
pursuant to Section 9(a)(3), such Excess Stock shall be deemed to have been
transferred to the Trust, as Charitable Trustee of a Charitable Trust for the
exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in
such Excess Stock may later be transferred pursuant to Section 9(b)(5). Shares
of Excess Stock so held in trust shall be issued and outstanding stock of the
Trust. The Purported Record Transferee shall have no rights in such Excess Stock
except the right to designate a transferee of such Excess Stock upon
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the terms specified in Section 9(b)(5). The Purported Beneficial Transferee
shall have no rights in such Excess Stock except as provided in Section 9(b)(5).
(2) Excess Stock. shall not be entitled to any dividends. Any
dividend or distribution paid prior to the discovery by the Trust that the
shares of Equity Stock have been converted for Excess Stock shall be repaid to
the Trust upon demand, and any dividend or distribution declared but unpaid
shall be rescinded as void ab initio with respect to such shares of Equity
Stock.
(3) Subject to the preferential rights of the Preferred Stock,
if any, as may be determined by the Board of Trustees of the Trust pursuant to
Article SIXTH of the Declaration, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of, or any distribution of the assets of,
the Trust, each holder of shares of Excess Stock shall be entitled to receive,
ratably with each other holder of Common Stock and Excess Stock, that portion of
the assets of the Trust available for distribution to its stockholders as the
number of shares of the Excess Stock held by such holder bears to the to number
of shares of Common Stock and Excess Stock then outstanding. The Trust, as
holder of the Excess Stock in trust or, if the Trust has been dissolved, any
trustee appointed by the Trust prior to its dissolution, shall distribute
ratably to the Beneficiaries of the Charitable Trust, when determined, any such
assets received in respect of the Excess Stock in any liquidation, dissolution
or winding up of, or any distribution of the assets of, the Trust.
(4) The holders of shares of Excess Stock shall not be
entitled to vote on any matters (except as required by the General Corporation
Laws of the State of Maryland).
(5) (A) Excess Stock shall not be transferable. The Purported
Record Transferee may freely designate a Beneficiary of its interest in the
Charitable Trust (representing the number of shares of Excess Stock( held by the
Charitable Trust attributable to a purported transfer that resulted in the
Excess Stock), if (i) the shares of Excess Stock held in, the Charitable Trust
would not be Excess Stock in the hands of such Beneficiary and (ii) the
Purported Beneficial Transferee does not receive a price for designating such
Beneficiary that reflects a price per share for such Excess Stock that exceeds
(x) the price per share such Purported Beneficial Transferee paid for the Equity
Stock in the purported Transfer that resulted in the Excess Stock, or (y) if the
Purported Beneficial-Transferee did not give value for such shares of Excess
Stock (such a through a gift, devise or other transaction), a price per share
equal to the Market Price on the date of the purported Transfer that resulted in
the Excess Stock. Upon such transfer of an interest in the Charitable Trust, the
corresponding shares of Excess Stock in the Charitable Trust shall be
automatically converted to an equal number or shares of Equity
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Stock, and such shares of Equity Stock shall be transferred of record to the
Beneficiary of the interest in- the Charitable Trust designated by the Purported
Record Transferee described above d such Equity Stock would not be Excess Stock
in the hands of such Beneficiary. Prior to any transfer of any interest in the
Charitable Trust, the Purported Record Transferee must give advance notice to
the Trust of the intended transfer, and the Trust must have waived in writing
its purchase rights under Section 9(b)(6); and (B) notwithstanding the
foregoing, if a Purported Beneficial Transferee receives a price for designating
a Beneficiary of an interest in the Charitable Trust that exceeds the amounts
allowable under Section 9(b)(5)(A), such purported Beneficial Transferee shall
pay, or cause the Beneficiary of the interest in the Charitable Trust to pay,
such excess to the Trust.
(6) Shares of Excess Stock shall be deemed to have been
offered for sale to the Trust, or its designee at a price per share equal to the
lesser of (i) the price per share in the transaction that created such Excess
Stock (or, in the case of devise or gift, the Market Price at the time of such
devise or gift) and (ii) the Market Price on the date the Trust, or its
designee, accepts such offer. Subject to the satisfaction of any applicable
requirements of the General Corporation Laws of the State of Maryland, the Trust
shall have the right to accept such offer for a period of 90 days after the
later of (i) the date of the transfer that resulted in such Excess Stock and
(ii) the date the Board of Trustees determines in good faith that a Transfer
resulting in Excess Stock has occurred, if the Trust does not receive a notice
of such Transfer pursuant to Section 9(a)(5).
(c) Nothing contained in this Section 9 or in any other
provision of the Declaration shall limit the authority of the Board of Trustees
to take such other action as it, in its sole discretion, deems necessary or
advisable to protect the Trust and the interests of the stockholders by
maintaining the Trust's eligibility to be, and preserving the Trust's status as,
a qualified REIT under the Code.
(d) If any of the foregoing restrictions on transfer of Excess
Stock are determined to be void, invalid or unenforceable by any court of
competent jurisdiction, the Purported Beneficial Transferee may be deemed, at
the option of the Board of Trustees, to have acted as an agent of the Trust in
acquiring such Excess Stock and to hold such Excess Stock on behalf of the
Trust.
(e) Nothing in this Section 9 precludes the settlement of
transactions entered into through the facilities of the New York Stock Exchange.
Section 10. Miscellaneous.
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(a) Exchange or Market Transactions. Nothing in Section 9 or
this Section 10 shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange or any other national
securities exchange or automated inter-dealer quotation system. However, as set
forth in Section 9 or this Section 10 certain transactions may be settled by
providing shares of Excess Stock.
(b) Severability. If any provision of Section 9 or this
Section 10 or any application of any such provision is determined to be invalid
by any federal or state court having jurisdiction over the issues, the validity
of the remaining provisions shall not be affected and other applications of such
provisions shall be affected only to the extent necessary to comply with the
determination of such court.
(c) Waiver. The Trust shall have authority at any time to
waive the requirements that Excess Stock be issued or be deemed outstanding or
that the Trust repurchase Preferred Shares in accordance with the provisions of
Section 9 if the Trust determines, based on an opinion of nationally recognized
tax counsel, that the issuance of such Excess Stock or the fact that such Excess
Stock is deemed to be outstanding, or any such repurchase, would not jeopardize
the status of the Trust as a REIT for federal income tax purposes.
(d) Mailings. All mailings shall be made by overnight United
States mail or by another overnight courier service.
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