EXHIBIT 3
DECLARATION OF TRUST
of
WASHINGTON REAL ESTATE INVESTMENT TRUST
OF MARYLAND
AS ADOPTED ON APRIL 5, 1996
WASHINGTON REAL ESTATE INVESTMENT TRUST
OF MARYLAND
Table of Contents
to
DECLARATION OF TRUST
Page
ARTICLE 1.
Name and Title to Property. 1
Section 1.1. Name and Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Resident Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3. Nature of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
Powers of Trustees. 2
Section 2.1. General Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.2. Acquisition and Dealing in Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.3. Acquisition and Dealing in Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4. Manner of Holding Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.5. Power to Borrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.6. Power to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.7. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.8. Organization of Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.9. Rights with Respect to Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.10. Delegation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.11. Collection and Compromise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.12. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.13. Power to Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.14. Deposit of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.15. Allocation of Receipts and Expenses between
Capital and Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.16. Valuations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.17. Fiscal Year and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.18. Respecting Certain Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.19. Other Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.20. Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3.
Limitations of Liability of Shareholders, Trustees, and Others. 6
Section 3.1. Limitation of Trustees' and Officer's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2. Trustee, Officer, and other Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.3. Limitation of Shareholder Liability & Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 4.
Shares of Beneficial Interest. 8
Section 4.1. General Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2. Right to Certificate and Form of
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.3. Issuance of Additional Shares and Fractional
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 5.
Record and Transfers of Shares. 9
Section 5.1. Register of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Transfer Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.3. Deposit of Certificates with Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.4. Method of Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.5. Transfer by Operation of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.6. Method of Recording Certain Type of
Share Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.7. Record of Register Conclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.8. Purchase or Retention Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.9. Notice to Shareholders; Loss of Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.10. Excess Share Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 6.
Characteristics of Shares. 13
Section 6.1. Ownership of Property in Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.2. Shares Deemed Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.3. Rights of Shares Acquired by Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.4. Dealing in Shares by Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE 7.
Meetings of Shareholders. 13
Section 7.1. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.3. Effect of Shareholder Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.4. Establishment of Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.5. Rights to Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.6. Report to Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.7. Right to Inspect Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 8.
Trustees. 15
Section 8.1. Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.2. Term of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.3. Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.4. Appointment of Trustee to Fill Vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.5. Effect of Death, Resignation, or Removal
of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.6. Action by Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.7. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.8. Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 9.
Distributions of Property. 17
Section 9.1. Distributions of Profits or Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9.2. Retention of Profits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 10.
Amendment of Trust; Removal of Trustees. 17
Section 10.1. Amendment of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.2. Removal of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE 11
Miscellaneous. 18
Section 11.1. Definition of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 11.2. Maryland Law Governs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 11.3. Execution of Trust in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 11.4. Certificate of One or More Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 12.
Duration of Trust. 18
ARTICLE 13.
Federal Housing Administration Insured Mortgages. 19
ARTICLE 14.
Investment Policies. 19
Section 14.1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14.2. Mortgages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14.3. Temporary Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14.4. Area of Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14.5. Prohibited Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14.6. Prohibited Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 14.7. Dealings with Affiliated Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 15.
Special Voting Requirements 20
Section 15.1. Related Shareholder Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 15.2. Application of Title 3, Subtitles 6 and 7 of Maryland Law . . . . . . . . . . . . . . . . . . . . . . . 20
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DECLARATION OF TRUST
OF
WASHINGTON REAL ESTATE INVESTMENT TRUST
OF MARYLAND
THIS DECLARATION OF TRUST made this 5th day of April, 1996, by
the persons named on the signature page hereof,
WITNESS that:
WHEREAS the Trustees are desirous of forming a Maryland real
estate investment trust for the purpose of acquiring, holding, managing,
improving, dealing with, and disposing of property real and/or personal,
wherever situated; and
WHEREAS, in furtherance of such purpose, the Trustees are
acquiring and may hereafter acquire certain property and shall hold and manage
all such property as such Trustees in the manner hereinafter stated; and
WHEREAS it is likewise proposed that the beneficial interest
in the property from time to time held by the Trustees shall be divided into
shares to be evidenced by certificates therefor, as hereinafter provided;
NOW, THEREFORE, the Trustees hereby declare that they will
hold all property of every type and description which they are acquiring or may
hereafter acquire as such Trustees, together with the proceeds thereof, in
trust, to manage and dispose of the same for the benefit of the holders from
time to time of the certificates of shares being issued and to be issued
hereunder and in the manner and subject to the stipulations contained herein,
to wit:
ARTICLE 1.
Name and Title to Property.
Section 1.1. The name of this Trust shall be "Washington Real
Estate Investment Trust of Maryland" and so far as may be practicable the
business of the Trust shall be conducted and transacted under that name, which
name (and the words "this Trust" wherever used in this Declaration of Trust,
except where the context otherwise requires) shall refer to the Trustees as
trustees but not personally and shall not refer to the officers, agents, or
shareholders of this Trust. All the property subject from time to time to this
Declaration of Trust shall be vested in the Trustees as joint tenants and held
by and transferred to the Trustees as joint tenants except as provided in
Section 2.4 of Article 2 hereof.
Section 1.2. The name and address of the resident agent for
service of process of this Trust in the State of Maryland is The Corporation
Trust Incorporated, 32 South Street, Baltimore, Maryland 21202. This Trust may
have such offices or places of business within or without the State of Maryland
as the Trustee may from time to time determine.
Section 1.3. The Trust is a real estate investment trust
within the meaning of Title 8 of the Corporation and Associations Article of
the Annotated Code of Maryland.
ARTICLE 2.
Powers of Trustees.
Section 2.1. The Trustees shall have without other or further
authorization full and absolute power and control and authority over the Trust
property held by them at any time hereunder and over the business of the Trust
to the same extent as if the Trustees were the sole owners of such property and
business in their own right, subject only to the limitations herein expressly
stated, and to the superior control of the shareholders so far as the same is
herein expressly stated. No person (the word "person" whenever used in this
Declaration of Trust, except where the context otherwise requires, is deemed to
mean any individual, association, trust, partnership, corporation, or other
entity) shall in any event be bound to see to the application of any money or
property paid to or delivered to the Trustees or their authorized
representative. No investment or reinvestment of the Trust property hereunder
shall be deemed improper because of its speculative character or because a
greater proportion of the Trust property is invested therein than is usual for
trustees, or by reason of any interest therein, direct or indirect, of any
Trustee or any other party whatsoever. Without restricting or limiting the
generality of the foregoing, such powers of the Trustees shall include among
others the powers enumerated in Sections 2.2 to 2.20, inclusive, of this
Article 2.
Section 2.2. The Trustees shall have power as principal,
agent, or otherwise, for such consideration as they may deem proper, to
purchase, acquire through the issuance of shares representing a beneficial
interest in the Trust property or through the issuance of notes, debentures,
bonds, or other obligations of the Trust, or otherwise acquire, hold, manage,
improve, lease (including building leases, part of the consideration for which
is the building on or adding to the premises by the lessee) for a term
extending beyond the possible termination of the Trust or for a lesser term,
rent, convey, sell, exchange, mortgage (with or without power of sale),
release, partition, or otherwise deal in real estate of any type and
description, including any type of interest therein, and/or buildings and
structures and tangible personal property of any type and description situated
thereon or elsewhere, such real estate and/or buildings and structures and
personal property being located in any part of the United States of America or
any of the territories or possessions thereof or the Dominion of Canada; and to
erect, construct, alter, repair, demolish or otherwise physically affect any
buildings or structures of any type or description located in any part of the
United States of America or any of the territories or possessions thereof or
the Dominion of Canada.
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Section 2.3. The Trustees shall have power as principal,
agent, or otherwise, for such consideration as they may deem proper, to
purchase, acquire through the issuance of shares representing a beneficial
interest in the Trust property, or through the issuance of notes, debentures,
bonds, or other obligations of this Trust, or otherwise acquire, hold, sell,
exchange, pledge, collect, pay, underwrite, and in any manner deal in stocks,
bonds, notes, certificates of indebtedness, debentures, mortgages and deeds of
trust (first or otherwise), bank acceptances, drafts, certificates of interest,
securities, obligations, and in general any property or rights (legal or
equitable) owned, held, created, or issued by or representing an interest in
any corporation, business trust (including the business trust created by these
presents), trusts, partnership, or other organization whether domestic or
foreign, any individual, the United States of America or any of the several
states or territories or any political subdivisions or agencies thereof, or
foreign governments or political subdivisions thereof.
Section 2.4. The Trustees shall have power to cause legal
title to any property of this Trust to be held by and/or in the name of one or
more of the Trustees or by any other person, or on such terms, in such manner,
and with such powers as the Trustees hereunder may determine and without
disclosure that the Trustees are interested therein.
Section 2.5. The Trustees shall have power to borrow money
for the purposes of this Trust, and to give notes, debentures, bonds, and other
negotiable or non-negotiable instruments of this Trust therefor, to enter into
other obligations on behalf of the Trust, and to mortgage and pledge the real
and personal property of this Trust or any part thereof to secure such notes,
debentures, bonds, contracts, or other obligations. Any notes, debentures,
bonds, instruments, or other obligations of or on behalf of this Trust
authorized pursuant to section 2.2, 2.3, or 2.5 of the Article 2 may be
convertible into shares of beneficial interest described in Article 4 hereof.
Section 2.6. The Trustees shall have power to loan money and
to invest and reinvest any funds of the Trust as they shall deem wise; and to
create a reserve fund or reserve funds for such purposes as the Trustees deem
advisable and invest or reinvest the same in such manner as they may deem best.
Section 2.7. The Trustees shall have power to pay all taxes
or assessments, of whatever kind or nature imposed upon or against the Trustees
individually or collectively in connection with the Trust property, or upon or
against the Trust property or any part thereof; and to make with the State of
Maryland or any other State or other taxing authority any agreement for the
payment of taxes to said State of Maryland or any other State or other taxing
authority, whether or not said taxes would otherwise be payable or assessable
by or against or in respect of the Trustees or the Trust property or the income
therefrom, all as may be required or permitted by any present or future law;
and for any of the foregoing purposes to make such returns and do all such
other acts and things as may be deemed by the Trustees necessary or desirable.
Section 2.8. The Trustees shall have power to cause to be
organized or assist in organizing a corporation or corporations under the laws
of any jurisdiction or any other trust, association, or other organization to
take over the Trust property or any part or parts thereof or
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to carry on any business in which this Trust shall directly or indirectly have
any interest, and to sell, convey, and transfer the Trust property or any part
or parts thereof to any such corporation, trust association, or organization in
exchange for the shares or securities thereof or otherwise, and to lend money
to, subscribe for the shares or securities of, and enter into any contracts
with any such corporation, trust, association, or organization, or any
corporation, trust, partnership, association, or organization in which this
Trust holds or is about to acquire shares or any other interest.
Section 2.9. The Trustees shall have power to exercise all
the rights, powers and privileges appertaining to the ownership of all or any
securities forming part of the Trust property to the same extent that an
individual might, and without limiting the generality of the foregoing, to vote
or give any consent, request, or notice or waive any notice either in person or
by proxy or power of attorney with or without power of substitution, to one or
more persons, which proxies and powers of attorney may be for meetings or
action generally or for any particular meetings or action, including the
exercise of discretionary powers.
Section 2.10. The Trustees shall have power to delegate from
time to time to such one or more of their number or to such other person as the
Trustees may deem best, the doing of such things and the execution of such
deeds or other instruments either in the names of all the Trustees or as their
attorney or attorneys or otherwise, as the Trustees may from time to time deem
expedient.
Section 2.11. The Trustees shall have power to collect, sue
for, receive and give receipt for all sums of money coming due to this Trust,
to consent to the extension of the time for payment, or to the renewal, of any
bonds or other securities, mortgages, deeds of trust or other obligations, and
to engage or intervene in, prosecute, defend, compound, compromise, abandon, or
adjust by arbitration or otherwise any actions, suits, proceedings, disputes,
claims, demands, or things relating to the Trust property; to be parties to
reorganizations and to transfer to and deposit with any corporation, committee,
voting trustees, or other persons any stocks, shares, or bonds, or other
securities or obligations of any corporation, trust, association, or other
organization, the securities of which form a part of the Trust property, for
the purpose of any reorganization of any such corporation, trust, association,
or other organization, or otherwise to participate in any arrangement for
enforcing or protecting the interests of the Trustees as the owners or holders
of such stocks, shares, bonds, or other securities or obligations and to pay
any assessment levied in connection with such reorganization or arrangement;
and to give time with or without security for the payment or delivery of any
debts or property and to execute and enter into releases, agreements, and other
instruments; and to pay or satisfy any debts or claims upon any evidence that
the Trustees shall think sufficient.
Section 2.12. The Trustees shall have power to incur and pay
any charges or expenses in the opinion of the Trustees necessary or incidental
to or proper for carrying out any of the purposes of this Trust; to appoint or
contract with any one or more of themselves or any firm in which one or more of
them may be members, or with any other person, to carry on and supervise all or
any part of the active management of the property and business of the Trust, or
to give
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investment advice, with such rights and such compensation as the Trustees may
deem proper; and to employ such clerical assistance as they deem necessary to
the transaction of the business of the Trust and such other persons, including
consultants, accountants, technical advisers, attorneys, brokers, corporate
fiduciaries, depositaries, corporations, escrow agents, partnerships, or trusts
(including a corporation, partnership, or trust of which one or more of the
Trustees is a stockholder, member, or trustee) and to fix their duties, periods
of employment and compensation.
Section 2.13. The Trustees shall have power to endorse or
guarantee the payment of any notes or other obligations of any person; to make
contracts of guaranty or suretyship, or enter into other obligations therefor;
and to mortgage and pledge the real and personal property of this Trust or any
part thereof to secure any or all of such obligations.
Section 2.14. The Trustees shall have power to deposit any
moneys or securities included in the Trust property with any one or more banks,
trust companies or other banking institutions deemed by the Trustees to be
responsible, such moneys or securities to be subject to withdrawal on notice or
upon demand and in such manner as the Trustees may determine, and the Trustees
shall have no responsibility for any loss which may occur by reason of the
failure of the person with whom the moneys or securities have been deposited
properly to account for the moneys or securities so deposited.
Section 2.15. The Trustees shall have power to determine
conclusively whether any moneys, securities, or other properties of the Trust
property are for the purposes of the Trust to be considered as capital or
income and in what manner any expenses or disbursements are to be borne as
between capital and income whether or not in the absence of this provision such
moneys, securities, or other properties would be regarded as capital or as
income and whether or not in the absence of this provision such expense or
disbursement would ordinarily be charged to capital or to income.
Section 2.16. The Trustees shall have power to determine
conclusively the value of any of the real estate, securities, or other
properties of this Trust and of any services, securities, property or other
consideration hereafter to be acquired by this Trust; and to revalue the real
estate, securities, or other properties of the Trust from time to time in
accordance with appraisals made by one or more of the Trustees or any one or
more of such appraisers as they deem responsible and experienced, and to keep
the books of the Trust and render reports to the shareholders of the Trust on
the basis of the figures so adopted.
Section 2.17. The Trustees shall have power to determine the
fiscal year of the Trust and the method or form in which its accounts shall be
kept and from time to time change the fiscal year or method or form of
accounts.
Section 2.18. No contract or other transaction between the
Trust and one or more of its Trustees or any other trust, corporation, firm,
association or entity in which one or more of the Trustees are trustees,
directors or officers or have a material financial interest, shall be void or
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voidable because of such relationship or interest or because such Trustee or
Trustees are present at the meeting of the Trustees or a committee thereof
which authorizes, approves or ratifies such contract or transaction, if:
(1) the fact of such relationship or interest is
disclosed or known to the Trustees or committee which
authorizes, approves or ratifies the contract or
transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of
such interested Trustee or Trustees; or
(2) the fact of such relationship or interest is
disclosed or known to the shareholders entitled to
vote and they authorize, approve or ratify such
contract or transaction by vote or written consent;
or
(3) the contract or transaction is fair and
reasonable to the Trust.
Common or interested Trustees may be counted in determining
the presence of a quorum at a meeting of the Trustees or a committee thereof
which authorizes, approves or ratifies such contract or transaction.
Any contract or transaction authorized, approved or ratified
in accordance with this Section 2.18 shall be presumed to be as valid as if
such contract or transaction had been entered into with a disinterested party.
Section 2.19. The Trustees shall have power to do all such
other matters and things as in their judgment will promote or advance the
business which they are authorized to carry on although such matters or things
are not herein specifically mentioned.
Section 2.20. The Trustees shall not have the power or
authority to issue face amount certificates or periodic payment plan
certificates as such terms are defined in the Investment Company Act of 1940,
nor shall the Trustees invest in investment securities beyond 25% of the net
assets of the Trust, except certificates of interest or shares of beneficial
interest in other real estate investment trusts or interests in partnerships
all or substantially all of whose assets are interests in real estate.
ARTICLE 3.
Limitations of Liability of
Shareholders, Trustees, and Others.
Section 3.1.
(a) No Trustee or officer of this Trust shall be personally
liable, in tort, contract or otherwise, in connection with Trust property or
the affairs of this Trust, or on account of his own acts or omissions to this
Trust, or to any shareholder, Trustee, officer or agent thereof except (i)
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to the extent that it is proved that such Trustee or officer actually received
an improper benefit or profit in money, property, or services, in which case
any such liability shall not exceed the amount of the benefit or profit in
money, property, or services actually received; or (2) to the extent that a
judgment or other final adjudication adverse to such Trustee or officer is
entered in a proceeding based on a finding in the proceeding that such
Trustee's or officer's action or failure to act was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated in
the proceeding. If Section 5-350 of the Courts and Judicial Proceeding Law of
the State of Maryland is subsequently amended to further eliminate or limit the
liability of a trustee or officer, as set forth in the preceding sentence, then
a Trustee or officer shall likewise not be liable to the fullest extent
permitted by the amended law. Neither the amendment nor repeal of this
Section, nor the adoption or amendment of any other provision of the
Declaration of Trust inconsistent with this Section, shall apply to or affect
in any respect the applicability of the preceding sentence with respect to any
act or failure to act which occurred prior to such amendment, repeal, or
adoption.
(b) All persons shall look solely to the Trust property for
satisfaction of claims of any nature arising in connection with the affairs of
the Trust.
Section 3.2.
(a) Each individual who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("Proceeding"), by reason of the fact that he, or an individual for whom he is
the legal representative, is or was a Trustee or officer of the Trust or is or
was serving at the request of the Trust as a director, trustee, officer,
employee or agent of another entity (including service with respect to an
employee benefit plan) whether the basis of such Proceeding is alleged action
in an official capacity as a trustee, director, officer, employee or agent or
in any other capacity while serving as a director, trustee, officer, employee
or agent, shall be indemnified and held harmless by the Trust to the fullest
extent permitted by Section 2-418 of the Maryland General Corporation Laws (the
"Law"), as the same exists or hereafter may be amended (but, in the case of any
such amendment, only to the extent that such amendment permits broader
indemnification rights than the Law permitted prior to such amendment) against
all expenses, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such individual in connection therewith (i)
in each and every situation where the Trust is obligated to make such
indemnification pursuant to Section 2-418 and (ii) in each and every situation
where, under Section 2-418, the Trust is not obligated, but is permitted or
empowered, to make such indemnification. The Trust shall promptly make or
cause to be made any determination that Section 2-418 requires. Such right
shall include the right to be paid by the Trust expenses incurred in defending
any such Proceeding in advance of its final disposition; provided, however,
that the payment of such expenses incurred by a Trustee or officer in his
capacity as a Trustee or officer (and not in any other capacity in which
service was or is rendered by such person while a Trustee or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such Proceeding, shall be made only upon delivery
to the
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Trust of an undertaking, by or on behalf of such Trustee or officer, to repay
all amounts so advanced if it should be determined ultimately that such Trustee
or officer is not entitled to be indemnified under this section or otherwise.
The Trust shall indemnify employees and agents of the Trust to such extent as
shall be authorized by the Trustees or provided for in the provisions of the
Bylaws as permitted by Section 8-301 of the Maryland General Corporation Law,
as it may be amended from time to time. Any repeal or notification of the
forgoing provisions of this Section 3.2 by the stockholders of the Trust shall
not adversely affect any right or protection of an individual existing at the
time of such repeal or modification.
(b) The rights conferred on an individual by Paragraph
(a) of this Section shall not be exclusive of any other right which such
individual may have or hereafter acquire under any statute, provision of the
Declaration of Trust, Bylaws, agreement, vote of shareholders or disinterested
Trustees or otherwise.
Section 3.3. No shareholder, as such, of this Trust shall be
held to any personal liability whatsoever, in tort, contract or otherwise, in
connection with Trust property or the affairs of this Trust or upon any
obligation of the Trust; and this Trust will indemnify and hold harmless each
shareholder from and against any and all losses, damages and liabilities
(including any reasonable expenses, including legal expenses, incurred by the
shareholder solely by virtue of such shareholder being a shareholder of the
Trust after the giving of the notice hereunder and in conformity with the
provisions of this section 3.3), if the shareholder complies with the following
conditions. After any claim is asserted in writing, or any suit or action is
brought against any shareholder, such shareholder shall notify the Trust
thereof within ten (10) business days after such shareholder has actual
knowledge of the same, and shall thereafter fully cooperate with the Trust in
defending such claim, suit or action in such manner as the Trust alone may see
fit. The Trust shall have the right to employ counsel of its choosing to defend
any such claim, suit or action. In the event that the Trust fails to diligently
defend against any such claim, suit or action, the shareholder shall have the
right to employ counsel of his choosing and to take such other action and incur
such other expense as is reasonably necessary to conduct such defense.
ARTICLE 4.
Shares of Beneficial Interest.
Section 4.1.
(a) The total number of shares which this Trust has authority
to issue is one hundred million shares (100,000,000) with a par value of $.01
per share. No assessment shall ever be made upon shareholders.
(b) The Board of Trustees may increase the aggregate number
of shares authorized to be issued by the Trust without shareholder approval.
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Section 4.2. Every shareholder shall be entitled to receive a
certificate in such form as the Trustees shall from time to time approve
specifying the number of shares held by him. The certificates in the form so
approved shall be treated as negotiable and title thereto and to the shares
represented thereby shall be transferred by delivery thereof to the same extent
in all respects as a stock certificate and the shares represented thereby of
any business corporation. Unless otherwise determined by the Trustees, such
certificates shall be signed by the President of the Trustees, and shall be
countersigned by a Transfer Agent, and registered by a Registrar, if any.
There shall be filed with each Transfer Agent and Registrar, if any, a copy of
the form of certificate so approved by the Trustees, certified by the President
of the Trustees, and such form shall continue to be used unless and until the
Trustees approve some other form. In case any one or more officers of this
Trust who shall have signed certificates shall cease to be such officer or
officers before the certificates so signed shall have been actually issued,
such certificates my nevertheless be issued with the same effect as though the
persons who signed such certificates had not ceased to be such officers of this
Trust. The Trustees may in their discretion authorize certificates to be signed
or authenticated by the facsimile signature of the officer or officers who are
authorized to sign such certificates; provided that any certificate signed or
authenticated by the facsimile signature of an officer shall not be valid
unless countersigned by a Transfer Agent.
Section 4.3. The Trustees in their discretion may from time
to time without vote of the shareholders issue authorized shares of this Trust,
to such party or parties and for such property or consideration, at such time
or times, and on such terms as the Trustees may deem best, and may in such
manner acquire other assets (real, personal, or mixed) and businesses, and no
prior offering thereof to any of the shareholders hereunder need be made. In
connection with any issuance of shares, the Trustees may issue fractional
shares or may provide for the issue of scrip for fractions of shares and
determine the terms of such scrip including, without limitation, the time
within which the same must be surrendered for exchange into full shares and the
rights if any of holders of scrip upon the expiration of the time so fixed, the
rights if any to receive proportional distributions, and the rights if any to
redeem scrip for cash, or the Trustees may in their discretion, or if they see
fit at the option of each shareholder, provide in lieu of scrip for the
adjustment of fractions in cash. The provisions of Section 4.2 hereinabove
relative to certificates for shares shall apply so far as applicable to such
scrip, except that such scrip may in the discretion of the Trustees be signed
by a Transfer Agent alone. The Trustees may also authorize the issuance of
warrants or options to purchase shares from time to time to such persons,
including themselves, upon such terms and conditions and for such consideration
as they determine to be proper.
ARTICLE 5.
Record and Transfer of Shares.
Section 5.1. A register shall be kept by or on behalf of the
Trustees, under the direction of the Trustees, which shall contain the names
and addresses of the shareholders and the number
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of shares held by them respectively and the numbers of the certificates
representing the same and a record of all transfers thereof. Only shareholders
whose certificates are so recorded shall be entitled to vote or to receive
dividends or otherwise to exercise or enjoy the rights of shareholders. No
shareholder shall be entitled to receive payment of any dividend, nor to have
notice given to him as herein provided, until he has given his address to a
Transfer Agent or such other officer or agent of the Trust as shall keep the
said register for entry thereon.
Section 5.2. The Trustees shall have power to employ a
transfer agent or transfer agents, and if they so determine, a registrar or
registrars. The transfer agent or transfer agents may keep said register and
record therein the original issues and transfers, if any, of the said shares
and countersign certificates of shares issued to the persons entitled to the
same. The transfer agents and registrars shall perform the duties usually
performed by transfer agents and registrars of certificates of stock in a
corporation, except as modified by the Trustees or provided for in the bylaws.
Section 5.3. In accordance with the usual custom of
corporations having a transfer agent, signed certificates for shares in blank
may be deposited with any transfer agent of this Trust, to be used by the
transfer agent in accordance with authority conferred upon it as occasion may
require, and in so doing the signers of such certificates shall not be
responsible for any loss resulting therefrom.
Section 5.4. Shares shall be transferable on the records of
the Trust (other than by operation of law) only by the record holder thereof or
by his agent thereunto duly authorized in writing, upon delivery to the
Trustees or a transfer agent of this Trust of the certificate or certificates
therefor, properly endorsed or accompanied by duly executed instrument or
instruments of transfer, together with such evidence of the genuineness of each
such endorsement, execution, and authorization and of other matters as may
reasonably be required. Upon such delivery the transfer shall be recorded on
the register of the Trust and a new certificate for the shares so transferred
shall be issued to the transferee, and in case of a transfer of only a part of
the shares represented by any certificate a new certificate for the residue
shall be issued to the transferor. But until such record is made the
shareholder of record shall be deemed to be the holder of such shares for all
purposes hereof and neither the Trustees nor any transfer agent or registrar
nor any officer or agent of this Trust shall be affected by any notice of the
proposed transfer.
Section 5.5. Any person becoming entitled to any shares in
consequence of the death, bankruptcy or insolvency of any shareholder, or
otherwise by operation of law, shall be recorded as the holder of the said
shares and receive a new certificate for the same upon production of the proper
evidence thereof and delivery of the existing certificate to the Trustees or a
transfer agent of this Trust. But until such record is made, the shareholder
of record shall be deemed to be the holder of such shares for all purposes
hereof and neither the Trustees nor any transfer agent or registrar nor any
officer or agent of this Trust shall be affected by any notice of such death,
bankruptcy, or insolvency.
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Section 5.6. The Trustees may treat two or more persons
holding any share as joint tenants of the entire interest therein unless their
ownership is expressly otherwise recorded on the register of the Trust, but no
entry shall be made in the register or in any certificate that any person is in
any other manner entitled to any future, limited or contingent interest in any
share; provided, however, that any person recorded as a holder of any share
may, subject to the provisions hereinafter contained, be described in the
register or in any certificate as a fiduciary of any kind and any customary
words may be added to the description of the holder to identify the nature of
such fiduciary relationship.
Section 5.7. The Trustees shall not, nor shall the
shareholders or any officer, transfer agent or other agent of this Trust or of
the Trustees, be bound to see to the execution of any trust, express, implied
or constructive, or of any charge, pledge, or equity to which any of the shares
of the Trust or any interests therein are subject, or to ascertain or inquire
whether any sale or transfer of any such shares or interest therein by any such
shareholder or his personal representatives is authorized by such trust,
charge, pledge, or equity, or to recognize any person as having any interest
therein except for the persons recorded as such shareholders. The receipt of
the person in whose name any share is recorded, or if such share is recorded in
the names of more than one person, the receipt of any one of such persons or of
the duly authorized agent of any such person shall be a sufficient discharge
for all dividends and other money and for all shares, bonds, obligations, and
other property payable, issuable, or deliverable in respect of such share and
from all liability to see to the application thereof.
Section 5.8. If any person, corporation, partnership, trust
or any other legal entity is or becomes at any time the beneficial owner,
directly or indirectly, of more than ten percent (10%) of the outstanding
shares, or if the tax status of the Trust under Public Law 86-779 or any other
tax statute or regulation is or can be endangered by the purchase or retention
of shares by any person, corporation, partnership, trust or any other legal
entity, the Trustees may, in their sole discretion, refuse to sell, transfer or
deliver shares to such person or entity, or, may repurchase any or all shares
held by such person or entity at cost or at the last sale price of a share as
of the date immediately preceding the day on which the demand for repurchase is
mailed, whichever price is higher. After the mailing of the demand for
repurchase, the shares may be cancelled upon the records of the Trust by the
order of the Trustees and the Trust shall pay promptly for such shares as above
determined.
Section 5.9. Any and all notices to which shareholders
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to shareholders of record
at their last known post office address as recorded on the register of the
Trust. In case of the loss, mutilation, or destruction of any certificate of
shares hereunder, the Trustees may issue or cause to be issued a new
certificate on such terms as they may see fit.
Section 5.10. If the Trustees shall at any time and in good
faith be of the opinion that direct or indirect ownership of shares of this
Trust has or may become concentrated to an extent which would cause any rent to
be paid to this Trust by a "sister corporation," if one existed, to
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fail to qualify or be disqualified as rent from real property by virtue of
Section 856(d)(2)(B) of the Internal Revenue Code of 1954 (the "Code"), or
similar provisions of successor statutes, pertaining to the qualification of
this Trust as a real estate investment trust, trustees shall have the power (1)
by lot or other means deemed equitable by them to call for purchase from any
shareholder of this Trust such number of shares as shall be sufficient in the
opinion of the Trustees to maintain or bring the direct or indirect ownership
of shares of this Trust into conformity with the requirements of said Section
856(d)(2)(B) pertaining to this Trust, and (2) to refuse to register the
transfer of shares to any person whose acquisition of such shares would, in the
opinion of the Trustees, result in this Trust being unable to conform to the
requirements of said Section 856(d)(2)(B). For purposes of this Section, the
term "sister corporation" means a corporation, the shares of which are owned by
exactly or substantially the same persons and in exactly or substantially the
same numbers as are the shares of this Trust. This Section shall apply even if
a "sister corporation" does not exist (1) at the time the Trustees determine
that the ownership of shares of this Trust has or may become so concentrated,
or (2) at the time the Trustees call shares for purchase or refuse to register
the transfer of shares.
The purchase price for the shares purchased pursuant hereto
shall be equal to the fair market value of such shares as reflected in the
closing price for such shares on the principal stock exchange on which such
shares are listed or, if such shares are not listed, then the last bid for the
shares, as of the close of business on the date fixed by the Trustees for such
purchase or, if no such quotation is available, as shall be determined in good
faith by the Trustees. From and after the date fixed for purchase by the
Trustees, the holder of any shares so called for purchase shall cease to be
entitled to dividends, voting rights and other benefits with respect to such
shares, except the right to payment of the purchase price fixed as aforesaid.
In order to further assure that ownership of the shares does
not become so concentrated, any transfer of shares that would prevent amounts
received by this Trust from a "sister corporation," if one existed, from
qualifying as "rents from real property" as defined in Section 856(d) of the
Code, by virtue of the application of Section 856(d)(2)(B) of the Code, shall
be void ab initio and the intended transferee of such shares shall be deemed
never to have had an interest therein. If the foregoing provision is
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the transferee of such shares shall be deemed to have acted
as agent on behalf of this Trust in acquiring such shares and to hold such
shares on behalf of this Trust. For purposes of determining whether this Trust
is in compliance with Section 856(d)(2)(B), Section 856(d)(5) of the Code, or
similar provisions of successor statutes shall be applied. The shareholders of
this Trust shall upon demand disclose to the Trustees in writing such
information with respect to their direct and indirect ownership of the shares
of this Trust as the Trustees deem necessary to determine whether this Trust
satisfies the provisions of Section 856(a)(5) and (6) and Section 856(d) of the
Code or the regulations thereunder as the same shall be from time to time be
amended, or to comply with the requirements of any other taxing authority.
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ARTICLE 6.
Characteristics of Shares.
Section 6.1. The ownership of the Trust property of every
description and the right of the conduct of any business hereinbefore described
are vested exclusively in the Trustees, and the shareholders shall have no
interest therein other than the beneficial interest conferred by their shares
issued hereunder, and they shall have no right to call for any partition or
division of any property, profits, rights, or interests.
Section 6.2. The shares issued hereunder shall be personal
property giving only the rights in this instrument and in the certificates
thereof specifically set forth. The death of a shareholder during the
continuance of this Trust shall not terminate the Trust nor give his or her
legal representatives a right to an accounting or to take any action in the
courts or otherwise against other shareholders or the Trustees or the property
held hereunder, but shall simply entitle the legal representatives of the
deceased shareholder to demand and receive a new certificate of shares in place
of the certificate held by the deceased shareholder, and upon the acceptance of
which such legal representatives shall succeed to all the rights of the
deceased shareholder under this Trust.
Section 6.3. Shares issued hereunder and purchased or
otherwise acquired by the Trustees for the account of the Trust shall not so
long as they belong to the Trust either receive dividends (except that they
shall be entitled to receive dividends payable in shares of the Trust) or be
voted at any meeting of the shareholders. Such shares may in the discretion of
the Trustees be cancelled and the number of shares authorized be thereby
reduced, or such shares may in the discretion of the Trustees be held in the
treasury and be disposed of by the Trustees at such time or times, to such
party or parties, and for such consideration as the Trustees may determine.
Section 6.4. The Trustees, or any one of them, may, in their
individual capacity, purchase and otherwise acquire or sell and otherwise
dispose of shares issued hereunder without restriction or liability to any
person.
ARTICLE 7.
Meetings of Shareholders.
Section 7.1. There shall be an annual meeting of the
Shareholders, to be held at such convenient time and place after delivery of
the Trust's annual report and proper notice as shall be determined by or in the
manner prescribed in the Bylaws. Except as otherwise provided in this
Declaration of Trust, special meetings of Shareholders may be called in the
manner provided in the Bylaws.
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Section 7.2. If for any reason the annual meeting of the
shareholders as herein provided shall be omitted, a special meeting of the
shareholders may subsequently be held in lieu thereof and the business of the
annual meeting may be transacted thereat.
Section 7.3. No action taken by the shareholders at any
meeting other than a meeting of the type specified either in Section 10.1 or
Section 10.2 hereof (and then only if such action is taken by the percentage of
shares in each case therein specified) shall in any way bind the Trustees.
Section 7.4. For the purpose of determining the shareholders
who are entitled to vote or act at any meeting or any adjournment thereof, or
who are entitled to participate in any dividend, the Trustees may from time to
time close the transfer books for such period not exceeding twenty (20) days as
the Trustees may determine; or without closing the transfer books the Trustees
may fix a date not less than ten (10) nor more than ninety (90) days prior to
the date of any meeting of shareholders or dividend payment as a record date
for the determination of shareholders entitled to vote at such meeting or any
adjournment thereof or to receive such dividend and any shareholder who as a
shareholder at the time so fixed shall be entitled to vote at such meeting or
any adjournment thereof or to receive such dividend even though he has since
that date disposed of his shares, and no shareholder becoming such after said
date shall be so entitled to vote at said meeting or any adjournment thereof or
to receive such dividend.
Section 7.5. Except as expressly set forth herein, any matter
requiring a vote of shareholders shall be approved by a vote of the holders of
a majority of shares. At any meeting of the shareholders, any shareholder of
shares entitled to vote thereat may vote by proxy. Only shareholders of record
of such shares shall be entitled to vote and each full share shall be entitled
to one vote. Fractional shares shall not be entitled to any vote. When any
such share is held jointly by several persons, any one of them may vote at any
meeting in person or by proxy in respect of such share, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such
vote shall not be received in respect of such share. If the holder of any such
share is a minor or a person of unsound mind, and subject to guardianship or to
the legal control of any other person as regards the charge or management of
such share, he may vote by his guardian or such other person appointed or
having such control, and such vote may be given in person or by proxy.
Section 7.6. At each annual meeting of the shareholders the
Trustees shall make a report upon the affairs of the Trust and upon its
business and operations, together with the statement of its financial standing
as shown by the books of account of the Trust. The Trustees shall have
prepared and shall submit to the Shareholders an annual report consisting of a
balance sheet, statement of income, and surplus of the Trust, and an opinion
thereon of an independent certified public accountant based on an examination
of the books and records of the Trust, which opinion shall not be materially
limited in scope and which shall be made in accordance with generally accepted
auditing procedures.
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The aforesaid annual report shall be filed by the independent
certified public accountant who prepares the same with the Trustees and with
such federal or state regulatory authorities as shall require such filing with
them. The Trustees shall mail a copy of such annual report to each shareholder
at his address as recorded on the books of the Trustees, as soon as practicable
after the close of the period covered by the report.
The Trustees shall have quarterly reports prepared and shall
submit a quarterly report to such federal or state regulatory authorities as
shall require the same. A quarterly report, which shall contain a current
balance sheet and statement of income, and surplus, may be unaudited.
Section 7.7. The records and books of account of the Trust
shall be open to the inspection of federal or state regulatory authorities at
any reasonable time or times, at the principal office of the Trust. Any
shareholder, upon written demand stating the specific purpose thereof, shall
have the right to examine the Trust records at the principal office of the
Trust, as permitted under Maryland law to the same extent as is permitted
corporate shareholders.
ARTICLE 8.
Trustees.
Section 8.1. The number of Trustees shall not be less than
three (3) nor more than seven (7). Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled, the continuing or surviving
Trustee or Trustees shall have all the powers granted to the Trustees and
discharge all the duties imposed upon the Trustees by this Declaration. The
term "majority of the Trustees" whenever used herein shall mean more than
one-half of the total number of Trustees then in office.
The following persons shall be the Trustees subject to the
provisions of Section 8.2 below: Arthur A. Birney, William N. Cafritz, Edmund
B. Cronin, Jr., Benjamin H. Dorsey, B. Franklin Kahn, David M. Osnos, Stanley
P. Snyder.
Section 8.2. The Trustees presently serving as such shall be
divided into three classes, as nearly equal in number as is feasible, with
respect to the term during which they shall severally hold office. The Board
of Trustees, by resolution, shall designate the Trustees who will serve in each
class. One class shall serve until the annual election of Trustees in 1997
and until their respective successors are duly qualified and assume office; one
class shall serve until the annual election of Trustees in 1998 and until their
respective successors are duly qualified and assume office; and one class shall
serve until the annual election of Trustees in 1999 and until their respective
successors are duly qualified and assume office. Commencing in 1997 the
Trustees shall be elected for three year terms for the class of Trustees whose
terms then expire, so that the term of office of one class of Trustees shall
expire each year. Except as additional qualifications shall otherwise be
specified in the bylaws, the Trustees shall be individuals of full age, not
under any legal disability, and no person shall qualify as a Trustee until he
shall have
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either signed this Declaration of Trust or agreed in writing to be bound in all
respects by the Declaration of Trust. No Trustee shall be required to give
bond, surety or security to secure the performance of his duties or
obligations.
Section 8.3. Any Trustee may resign his trust by instrument
in writing signed by him and delivered or mailed to the President of the Trust,
and such resignation shall take effect immediately or at a later date according
to the terms of the notice.
Section 8.4. In case a vacancy in the number of Trustees
shall occur through death, resignation, or removal (unless the vacancy
occurring through removal has already been filled by the shareholders acting
pursuant to the provisions of Section 10.2 hereof), the remaining Trustees or
Trustee may fill such vacancy by appointing by an instrument in writing signed
by a majority of the Trustees such person as they or he in their or his
absolute discretion shall see fit, but no such appointment shall become
effective unless and until the person so appointed shall have delivered to the
President of the Trust an instrument in writing, signed by such person
acknowledging and agreeing to be bound by this Declaration of Trust. Thereupon
the Trust property shall vest in the new Trustee jointly with the continuing
Trustee or Trustees without any further act or conveyance.
Section 8.5. The death, resignation, or removal of any one or
more of the Trustees shall not operate to annul the Trust or to revoke any
existing agency created pursuant to the terms of this Declaration of Trust.
Section 8.6. Meetings of the Trustees shall be held from time
to time upon the call of the President of the Trustees or any two of the
Trustees. Notice of any meetings shall be given as provided in the bylaws but
may be waived by any Trustee either before or after such meeting. The
concurrence of all the Trustees shall not be necessary for the validity of any
action taken by them, but a decision expressed in a vote passed at a meeting by
a majority of the Trustees or expressed in a writing signed by a majority of
the Trustees without a meeting, shall constitute the action of the Trustees and
have the same effect as if assented to by all. At any meeting a majority of
the Trustees shall constitute a quorum.
Section 8.7. The Trustees shall annually elect from among
their number a President, who shall be the principal officer of the Trust, and
may elect from among their number or otherwise a Secretary and such other
officers or agents as they may deem advisable and may act in any manner by or
through any such officer or agent. The Trustees shall fix the compensation of
all officers whom they may elect or appoint, shall receive reasonable
compensation for their general services as Trustees and officers hereunder, and
may pay themselves or any one or more of them such compensation for special
services as they in good faith may deem reasonable.
Section 8.8. The Trustees may adopt a seal and from time to
time adopt, amend or repeal bylaws not inconsistent with law or this
Declaration of Trust to regulate the government of the Trust and administration
of its affairs, including, but not limited to, the duties of the Trust's
officers, agents, servants and representatives.
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ARTICLE 9.
Distributions of Property.
Section 9.1. The Trustees shall from time to time distribute
ratably among the shareholders such proportions of the net profits, surplus
(including paid-in surplus), capital, or assets held by the Trustees as they
may deem proper and such distribution may be made in cash or property
(including without limitation any type of obligations of the Trust or any
assets thereof); and the Trustees may distribute ratably among the shareholders
additional shares issuable hereunder in such manner and on such terms as the
Trustees may deem proper; but the amount of all distributions and the time of
declaration and payment thereof shall be wholly in the discretion of the
Trustees, as shall also the determination of what constitutes net profits or
surplus, and such distributions may be made even though the paid-in capital of
this Trust at the time of any distribution exceeds the net assets of the Trust
based either on the market value (as determined by the Trustees under Section
2.16 of Article 2 hereinabove) or the book value; and such distribution may be
among the shareholders of record at such other date (not more than twenty (20)
days prior to payment of such distribution) as the Trustees shall determine.
Section 9.2. The Trustees may always retain from the net
profits such amount as they may deem necessary to pay the debts or expenses of
the Trust or to meet obligations of the Trust, or as they may deem desirable to
use in the conduct of its affairs or to retain for future requirements or
extensions of the business.
ARTICLE 10.
Amendment of Trust;
Removal of Trustees.
Section 10.1. The provisions of this Declaration of Trust may
be amended by a vote of the holders of a majority of shares, or the Trust may
be terminated by the vote of the Trustees with the approval of the holders of a
majority of shares. Notwithstanding the foregoing (and notwithstanding the
fact that some lesser percentage may be permitted by law), the affirmative vote
of the holders of 70% or more of the outstanding shares of the Trust entitled
to vote generally in the election of Trustees shall be required to amend or
repeal Sections 5.8, 5.10, 8.1, 8.2, this Section 10.1, or Article 15 of this
Declaration of Trust.
Section 10.2. Any Trustee may be removed either (1) at any
meeting of shareholders called for the purpose, by the affirmative vote of not
less than two-thirds in interest of the shares then outstanding hereunder and
entitled to vote; or (2) by the unanimous vote of all other Trustees with the
approval of the holders of a majority of the shares.
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Section 10.3. The Trustees shall maintain insurance against
possible tort liability on the part of the Trust in an amount customarily
carried by prudent businessmen in the operation of the same or a similar type
of business.
ARTICLE 11.
Miscellaneous.
Section 11.1. The term "Trustees" as used herein shall mean,
where the context admits, such of the undersigned or their duly appointed and
qualified successors as shall be at the time acting as Trustees hereunder.
Section 11.2. This instrument is executed by the Trustees and
delivered in the State of Maryland and with reference to the laws thereof, and
the rights of all parties and the construction and effect of every provision
hereof shall be subject to and construed according to the laws of said
Maryland.
Section 11.3. This Declaration of Trust may be simultaneously
executed in several counterparts, each of which so executed shall be deemed to
be an original, and such counterparts, together, shall constitute but one and
the same instrument, which shall be sufficiently evidenced by any such original
counterpart.
Section 11.4. Any certificate signed by a person who appears
to be a Trustee hereunder, concerning the number or identity of Trustees or
shareholders, that the execution of any instrument or writing has been duly
authorized, the form of any vote passed at a meeting of Trustees or
shareholders, the fact that the number of Trustees or shareholders present at
any meeting or executing any written instrument satisfied the requirements of
this Declaration of Trust, the form of any by-law adopted by or the identity of
any officer elected by the Trustees or the existence or nonexistence of any
fact or facts which in any manner relate to the affairs of the Trust shall be
conclusive evidence as to the matters so certified in favor of any person
dealing with the Trustees or any one or more of them, and the successors of
such person.
ARTICLE 12.
Duration of Trust.
This Trust shall continue without limitation of time but
subject to the provisions of Article 10 hereof.
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ARTICLE 13.
Federal Housing Administration Insured Mortgages.
The Trustees shall not have the power to sell or otherwise
dispose of any mortgage or mortgages or partial interest in such mortgage or
mortgages insured by the Federal Housing Administration which the Trust owns
unless such transfer is to a mortgagee approved by the Federal Housing
Administration or is otherwise in accordance with the provisions of the
National Housing Act, as amended, or Regulations promulgated thereunder.
ARTICLE 14.
Investment Policies.
Section 14.1. It is the policy of the Trust to invest
primarily in income producing real estate, including shopping centers,
commercial office buildings, apartment houses and industrial buildings.
Investments will be made on a long-term basis and not with the intention of
resale in the immediate future. It is also a policy to improve and upgrade
real estate investments with a view toward increasing income.
Section 14.2. It is the policy of the Trust to finance the
purchase of its properties through the use of cash and unsecured and/or secured
financing. The Trust may also acquire properties by the issuance of shares or
senior securities, which may or may not be convertible to shares of the Trust,
by the exchange of properties and by the formation of one or more partnerships
and the exchange of partnership interests therein for properties.
Section 14.3. The Trust may, on a temporary basis, invest in
United States government obligations, state or municipal obligations,
mortgages, commercial papers, or similar investments, as a means of providing
for contingencies and future purchases. Such investments will not be in
amounts which would, in the opinion of counsel for the Trust, disqualify the
Trust for treatment as a "real estate investment trust" under the Internal
Revenue Code and Regulations thereunder.
Section 14.4. It is the policy of the Trust to make
investments in any state of the United States or the Dominion of Canada where,
in the opinion of counsel for the Trust, the Trust may legally operate without
affecting the limited liability of the shareholders (other than for tort
claims, contract claims where shareholder liability is not negated, claims for
taxes, and certain statutory liabilities).
Section 14.5. The Trust may not invest in (1) equity
securities in any company holding investment or engaging in activities
prohibited by the Declaration of Trust except where the
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investment is to acquire underlying real estate assets by dissolution of such
company, or (2) commodities.
Section 14.6. The Trust may not (1) engage in any short sale,
(2) engage in trading as compared with investment activities, (3) issue
redeemable securities as that term is defined in the Investment Company Act of
1940, (4) engage in distribution of securities issued by others, (5) engage in
underwriting securities of other issuers, (6) invest in securities of other
issues for the purpose of exercising control or in securities of or interests
in persons primarily engaged in real estate activities, except where the
purpose is to acquire the underlying properties of said issuer or persons, (7)
make unsecured loans to other persons, (8) enter into any advisory contract for
a period of more than one year.
Section 14.7. The Trust shall not, in dealing with any
Trustee, investment adviser, officer or employee of the Trust, enter into any
transactions, contrary to the obligations imposed upon Trustees by courts of
equity.
ARTICLE 15.
Special Voting Requirements.
Section 15.1.
(a) Any merger, consolidation or liquidation involving the
Trust, or any sale, lease, pledge, exchange or other transfer of all or
substantially all of the Trust's assets, shall require the approval of a
majority of the Trustees. If any such transaction is with, into or to a
Related Shareholder, such transaction also shall require the approval of a
majority of the Trustees not appointed or nominated by, acting on behalf of, or
representing, such Related Shareholder, and not an "affiliate" or "associate"
of such Related Shareholder.
(b) For purposes of this Article, the terms "affiliate" and
"associate" have the meanings assigned to them in Rule 12b-2 under the
Securities Exchange Act of 1934 (the "Exchange Act") and the term "Related
Shareholder" means any person, corporation or other entity who or which is the
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of five
percent (5%) or more of the outstanding shares of the Trust entitled to vote
generally in the election of Trustees after including among his or its shares
those owned by an "affiliate" or "associate." A person, corporation or other
entity who or which was a "Related Shareholder" at any time remains a "Related
Shareholder" so long as he or it remain an "affiliate" of the Trust.
Section 15.2. The provisions of Title 3, Subtitle 6 and 7 of
the Corporations and Associations Article of the Annotated Code of Maryland
entitled "Special Voting Requirements" and "Voting Rights of Certain Control
Shares", respectively (or any successor statutes) shall apply to this Trust.
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In witness whereof, the undersigned Trustees have executed
this Declaration of Trust as of the date first set forth above.
/s/ Arthur A. Birney
----------------------------------------------------
Arthur A. Birney
/s/ William N. Cafritz
----------------------------------------------------
William N. Cafritz
/s/ Edmund B. Cronin, Jr.
----------------------------------------------------
Edmund B. Cronin, Jr.
/s/ Benjamin H. Dorsey
----------------------------------------------------
Benjamin H. Dorsey
/s/ B. Franklin Kahn
----------------------------------------------------
B. Franklin Kahn
/s/ David M. Osnos
----------------------------------------------------
David M. Osnos
/s/ Stanley P. Snyder
----------------------------------------------------
Stanley P. Snyder
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