EXHIBIT
3.1
AMENDED
AND RESTATED DECLARATION OF
TRUST
OF
FIRST
REAL ESTATE INVESTMENT
TRUST OF NEW JERSEY
This
is
an Amended and Restated Declaration of Trust by the First Real Estate Investment
Trust of New Jersey (the "Trust"), a real estate investment trust formed under
the laws of New Jersey. It is made as of the 7
th
day of November,
1983 by the persons currently serving as Trustees of the Trust, who are Garo
Artinian, Donald W. Barney, Robert S. Hekemian, John G. Keuhnelian, Herbert
C.
Klein, Nicholas A. Laganella, and John B. Voskian (the "Trustees").
W
I T N E S S E T
H:
This
Trust is formed for the purpose of acquiring, holding, managing, improving
and
dealing with property, real and personal, in any part of the United States,
its
possessions and foreign countries.
The
Trustees hereby declare that they will hold all property of every type and
description, which they now hold as Trustees or may hereafter acquire as such,
together with proceeds thereof, in trust, to manage, use and dispose of the
same
for the benefit of holders from time to time, of certificates of shares being
issued or to be issued hereunder as hereinafter provided:
ARTICLE
I
General
Description of the
Trust
l.1 (a)
Name
The
name of the Trust is "First Real
Estate Investment Trust of New Jersey."
(b)
Business
The
business of the Trust shall be
conducted, so far as feasible, under that name. The name shall refer
to the Trustees as Trustees and not personally or individually. Under
such name, the Trustees may conduct all the business of the Trust, sue and
be
sued.
1.2
Location
477
Main Street, Hackensack, New
Jersey, or such other place as the Trustees may designate.
1.3
Nature
The
Trust shall be of the type known as
a business trust, and shall not be a general or limited partnership or
corporation.
(
Proviso
: In
the event that there is a federal legislation extending the advantages of Part
II, Subchapter M of Chapter 1, of the Internal Revenue Code of 1954,
the Trustees reserve the right, in their discretion, to Convert the Trust into
a
corporation, taking all necessary steps for such conversion.)
1.4
Purpose
The
purpose of the Trust is to conduct
its business as a "Real Estate Investment Trust" and to qualify as such under
the Act mentioned in 1.3 above; but, in their discretion, the Trustees may
conduct the business in such manner as may not so qualify, and the Trustees
shall not be liable because of failure to quality.
ARTICLE
II
Shares
2.1
Issuance
Beneficial
interest in the Trust shall
be designated as shares, evidenced by certificates of shares, in form as
prescribed by the Trustees, registered in name of shareholder, and
transferable. There shall be no limit on the number of shares that
may be issued.
2.2
Only
One Class of
Shares
There
shall be only one class of
shares, with equal voting power, and equal rights to dividends, distribution,
liquidation and other rights.
2.3
No
Limit on Number of
Shares; No Pre-Emptive Rights
There
shall be no limit to the number
of shares that may be issued, and shares may be issued without preemptive
rights, in the Trustees' discretion.
2.4
No
Shareholder Title to
Property or Right to Partition
The
shareholders shall have no legal
title to the Trust property, or any interest therein; nor any right to partition
of such property during the continuance of the Trust.
2.5
Shares
are Personalty;
Effect of Shareholder's Death
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
representative 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.
ARTICLE
III
Meeting
of
Shareholders
3.1
Annual
Meeting and Special
Meetings
(a) Shareholders'
annual meeting shall be held at the principal office of the Trust, or such
other
place as the Trustees may designate, on any business day during the period
April
1st to April 15th, inclusive, of each year.
(b) A
special meeting shall be called upon the request of a majority of the Trustees,
giving shareholders not less than ten (10) days within notice of the time,
place
and purpose of the meeting.
3.2
Quorum
A
majority of the shares in the Trust
present in person or by proxy shall constitute a quorum of the shareholders'
meeting, annual or special.
3.3
Voting
Rights Per
Share
Each
shareholder shall be entitled to
one vote, in person or by proxy, for each share registered in his name. In
the
election of Trustees, each shareholder shall be entitled to one vote per share
for each Trustee to be elected, but such voting shall be on a non-cumulative
basis.
3.4
Matters
on Which
Shareholders Can Vote
The
shareholders shall be entitled to
vote on the following matters and no other.
Election
of Trustees.
3.5
Fixing
Record Date for
Voting
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
fix a date not less than ten (10) days or more than sixty (60) 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. Any shareholder
who was 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 or
she has since that date disposed of his or her shares, and no shareholder
becoming such after said date shall be entitled to vote at said meeting or
any
adjournment thereof or to receive such dividend.
3.6
Proxy
Voting
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 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.
3.7
Trustees'
Annual
Report
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.
3.8
Shareholders'
Rights of
Inspection
Shareholders
shall have the right, at
reasonable times during business hours, and for proper purposes, to
inspect the consolidated balance sheet, income and earned surplus statements
of
the Trust and the records of the meetings of shareholders.
3.9
Non-Liability
of
Shareholders
(a) Shareholders
shall not be liable for calls or assessments and shall not be personally liable
in connection with the Trust property or the affairs of the Trust and the
Trustees shall not have any power to bind the shareholders
personally. Every contract or obligation of the Trust of any nature
shall contain a provision that the other party thereto shall look solely to
the
assets of the Trust for satisfaction of any claim thereunder and that
the shareholders and the Trustees shall not be personally liable
thereunder. Omission of such a provision, however, shall not make
them so liable. This section shall not apply to any contract or
Regulatory Agreement entered into between the Trustees and the Federal Housing
Commissioner and any other necessary document or instrument executed
in connection with the acquisition, maintenance, or operation of any property
upon which the mortgage is insured, held, owned, or reinsured by the Federal
Housing Commissioner.
(b) If
under the laws of any jurisdiction any shareholder should have personal
liability for a tort claim or a contractual claim, claims for taxes or any
other statutory liabilities, which claims or liabilities are not
satisfied by the Trust, upon payment of any such claim the shareholder shall
be
entitled to reimbursement by the Trust.
3.10
Trustees'
Rights as to
Acquisition or Disposition of Shares
The
Trustees, or any one of them, in
their individual capacity, may purchase or otherwise acquire or sell and
otherwise dispose of shares issued hereunder without restriction or liability
to
any person, subject to restrictions contained in this Declaration of Trust
pertaining to other shareholders generally.
3.11
No
Amendments to Trust to
Increase Shareholders' Liability
No
amendment to this Declaration of
Trust shall be made increasing the liability of the shareholders
without the unanimous written consent of all shareholders.
ARTICLE
IV
The
Trustees
4.1
Number
The
number of Trustees shall be not
less than 5 and not more than 9. The Trustees herein named at the
time of the execution of the Trust shall be 7. The said number may be
increased or decreased by the Trustees by a vote of not less than a majority
of
the Trustees in office.
4.2
Term
of
Office
Except
for the initial Board of
Trustees, each Trustee shall be elected for a term of 3 years and
shall continue in office until qualification of his successor elected
at the annual meeting of shareholders. The term of at least two
Trustees shall expire every year.
4.3
Qualifications
The
Trustees shall be individuals of full age, and no person shall qualify as a
Trustee until he shall have either, signed this Declaration of Trust or agreed
in writing to be bound in all respects by the Declaration. No person
shall be qualified to act as Trustee who has purchased or subscribed for less
than 500 shares of the Trust. In the event that a Trustee's
shareholding shall fall below 500 shares, the Secretary shall give such Trustee
10 days written notice of his apparent disqualification and during said period
of 10 days such Trustee shall have the opportunity to correct such
disqualification by acquiring the necessary amount of shares. Upon
his failure to do so within the said 10 days, he shall be disqualified and
shall
be relieved of his duties and powers as such Trustee. The Trustees
shall be under no obligation to issue or to sell the necessary
shares to such apparently disqualified Trustee for the purpose of
restoring or correcting his qualification. No person shall serve as
Trustee who has attained 76 years of age; provided however, in the event any
Trustee shall reach the age of 76 during his or her term of office, the Trustee
shall be permitted to complete his or her then current term.
4.4
Bonding;
Compensation
(a) No
Trustee shall be required to give bond, surety, or security to secure the
performance of his duties or obligations.
(b) The
Trustees shall receive such compensation, regular or special, as they shall
deem
reasonable and proper, but in no event shall the aggregate annual compensation
of the Trustees exceed one-half of one percent of the net worth of the Trust
as
of the commencement of the period for which such compensation is
paid.
4.5
Resignation;
Removal
Any
Trustee may resign his office by
instrument in writing signed by him and delivered or mailed to the President
or
Secretary of the Trustees; and such resignation shall take effect immediately
or
at the date it is received or any particular time specified
therein. No acceptance of the resignation shall be necessary to make
it effective. Trustees may, by a vote of not less than 2/3 of all
Trustees, remove any member of the Board of Trustees with or without
cause.
4.6
Vacancies
The
resignation, removal, incompetency,
disqualification or death of any or all of the Trustees shall not terminate
the
Trust or affect its continuity; and any vacancy caused by the resignation,
removal, incompetency, disqualification or death of any Trustee or Trustees
shall not void, vitiate or invalidate any act or transactions made or done
by
the Trustees otherwise valid and proper. During a vacancy, the
remaining Trustee or Trustees may exercise the powers of the Trustees
hereunder. Vacancies among the Trustees may be filled by a written
designation signed by a majority of the remaining Trustees and lodged among
the
records of the Trust. The determination of a vacancy among the
Trustees by reason of resignation, incompetency, disqualification or death,
when
made by a majority of the remaining Trustees and stated in the instrument
filling such vacancy, shall be final and conclusive for all
purposes.
4.7
Successor
Trustees
Title
to the property of the Trust
shall vest in successor Trustees, upon written acceptance of their election
or
appointment, without any further act. They shall thereupon have the same powers,
duties and exemptions as though originally named as Trustees in this
Declaration. Such written acceptance shall be filed with the records
of the Trust, and a certificate signed by a majority of the Trustees as to
who
are or were Trustees at any time shall be conclusive and binding for
all purposes; provided, however, that, so long as any mortgage of any property
of the Trust is insured, held, owned or reinsured by the Federal Housing
Commissioner, any such successor Trustees shall assume and agree to be bound
by
the terms of the Regulatory Agreements then in force with the Federal Housing
Commissioner by an instrument in writing satisfactory to the Federal Housing
Commissioner.
4.8
Vote
Required At Trustees'
Meetings
The
Trustees shall act as a
Board. Any action of a majority of the Trustees in office
or of a majority of them present at a duly convened meeting of the Trustees,
except as greater proportion may otherwise be required herein, shall be
conclusive and binding as an action of the Trustees.
4.9
Trustees'
Meetings;
Quorum
Meeting
of the Trustees shall be held
as may be called by the President of the Trustees or any two individual
Trustees. A majority of the Trustees shall constitute a
quorum.
4.10
Officers
The
Trustees shall elect one of their
members as Chairman. The Trustees shall annually elect one of their members
as a
President who shall be the principal executive officer of the
Trust. They shall also appoint a Secretary and other officers and
agents as deemed advisable. The Chairman, the Secretary, the
President and such other officers shall receive reasonable compensation as
such
officers and compensation for special services as they in good faith
may perform.
4.11
Advisors
Committee
The
Trustees may appoint a Committee of
Advisors, the membership of which shall not be Trustees or officers of the
Trust, but may be shareholders or retired Trustees. The Chairman or
the President may preside at meetings of the Committee of
Advisors. They shall be entitled to such compensation as
the Trustees may reasonable appropriate. Any member of the
Committee of Advisors may be removed by a majority vote of the
Trustees. The function of the Committee of Advisors is to consult
with and advise Trustees as to investments of the Trust property and as to
other matters related to the business of the Trust. The
Committee of Advisors shall not have power to make contracts, or to bind the
Trust, or to incur liability for the Trust.
4.12
Seal
The
Trustees may adopt a seal for the Trust.
4.13
Committees
of the
Trustees
(a) The
Board of Trustees shall have the power to establish an Executive Committee
consisting of three to five members of the Trustees as may be designated by
the
President and/or Chairman of the Board of Trustees. The Board of
Trustees may delegate to the Executive Committee all of the powers of the Board
of Trustees, except that the Board of Trustees may not delegate any of the
following powers:
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(i)
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To
make, alter or amend a by-law;
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(ii)
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To
elect, appoint or remove a Trustee;
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(iii)
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To
submit any matter to the shareholders for
approval;
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(iv)
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To
establish a dividend;
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(v)
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To
sell all, or substantially all, of its assets;
and
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(vi)
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To
adopt a plan of merger or
dissolution.
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(b) The
Board of Trustees may establish an Audit Committee and such other Committees
as
it may deem appropriate, which Committees shall consist of three to five members
of the Board of Trustees as may be designated by the President and/or Chairman
of the Board of Trustees. The Board of Trustees may delegate to such
Committees such powers as the Board of Trustees may deem appropriate and which
are not inconsistent with law and with the provisions of Sub Section
4.13(a).
ARTICLE
V
Powers
of the
Trustees
5.1
Management
of the
Trust
(a) The
legal title of all property belonging to the Trust shall rest in the Trustees
and they shall have absolute and exclusive control, management
and disposition thereof, and shall have absolute control and
management of the business and affairs of the Trust, free from any
power or control by the shareholders, in the same manner as if they were
absolute owners thereof, subject to terms and limitations
contained in this Declaration of Trust.
(b) The
Trustees are specifically authorized to execute a Regulatory Agreement in
connection with any property upon which the mortgage is insured, held, owned or
reinsured by the Federal Housing Commissioner and the Trust, the Trust property
covered by any such mortgage, and all Trustees, officers and
shareholders and beneficiaries, so far as such agreements shall apply
to them, shall be bound thereby.
5.2
General
Powers
The
Trustees shall have all power
necessary or convenient for transaction of the business of the
Trust.
5.3
Discretion
as to
Investments
No
investment or reinvestment of Trust
property shall be deemed improper because of the speculative character of such
investment, or because of excessive or unusual proportion of total property
so
invested.
5.4
No
Duty of Inquiry by Third
Parties
No
person, individual, association,
partnership, or corporation shall be bound to see to the application of any
monies or property paid to or delivered to the Trustee or to their authorized
representative.
5.5
Enumeration
of Certain
Specified Powers
Without
restricting or limiting the
above-stated provisions, the powers of the Trustees shall include,
among other powers incidental to their office, the powers herein enumerated
under this Article, namely:
(a) The
power as principal, agent or otherwise, for such consideration and on such
terms
as they deem proper, to purchase, acquire for cash, for shares representing
beneficial interest in the Trust property, for notes, debentures, bonds or
other
obligations of the Trust, through exchange of property held by the Trust, or
otherwise, acquire, hold, manage, improve, lease, for terms beyond the
termination of the Trust or lesser term, rent, convey, sell, transfer, exchange,
mortgage, partition, develop and otherwise deal in real and personal property
of
any kind or description, including any kind or type of interest in such
property, located in the United States or any of its possessions or territories;
to erect, construct, alter, improve, or otherwise alter or affect any building,
structure or improvement on such properties in any part of the United States,
its possessions and territories.
(b) To
enter into all sorts of contracts incidental to their ownership, control, and
operation of the Trust properties.
(c) To
borrow money, unsecured or secured, on notes, debentures, bonds, any negotiable
or non-negotiable instrument; to pledge its real or personal property for such
loans; to assume judgment of mortgages on properties purchased; to pledge the
general assets of the property of the Trust as security for debentures and
other
loans; to maintain short-term or long-term loan accounts with banks and other
lending institutions.
(d) To
purchase shares and obligations of the Trust.
(e) To
lend money on behalf of the Trust and to invest the funds of the
Trust. To create reserve funds for such purposes as they deem
advisable. To deposit funds of the Trust in banks and other
depositories without regard to whether such accounts will draw
interest.
(f) To
adopt and from time to time amend Trustees' Regulations which may include but
shall not be limited to provisions relating to the time, place and notice of
meetings of the Trustees and of the Beneficiaries; record dates and other
matters relating to voting and the use of proxies; designation,
appointment and compensation of representatives and agents and their
number, duties and qualifications; the form of Certificates of Beneficial
Interest and the conditions for replacing lost, mutilated or stolen
certificates; and the procedure for amendment of the Trustees'
Regulations.
(g) To
exercise with respect to property of the Trust, assent, subscribe or
convert, or of any other nature; to grant proxies, and to participate in and
accept securities issued under any voting trust agreement.
(h) To
participate in any reorganization, readjustment, consolidation, merger,
dissolution, sale or purchase of assets, or similar proceedings of any
corporation, partnership or other organization in which the Trust shall have
an
interest and in connection therewith to delegate discretionary powers to any
reorganization, protective or similar committee and to pay assessments and
other
expenses in connection therewith.
(i) To
engage independent contractors for the management of the properties
of the Trust, in such terms and conditions and for such consideration as deemed
advisable.
(j) The
power to delegate to such one or more of the Trustees or to such other persons
as the Trustees may choose, the doing of such things and the execution of such
deeds and instruments either in the name of the Trustees or as their agent
or
attorney, or otherwise, as the Trustees may deem proper and
expedient.
(k) Power
to collect, sue for, receive, adjust and settle claims for all sums of money
and
other property due to the Trustees.
(l) To
endorse or guarantee the payment of bonds, notes or other obligations of third
parties; to make contracts of guaranty or suretyship, or to enter into other
obligations therefore; and to mortgage or pledge the real or personal property
of the Trust to secure any of the foregoing.
(m) To
determine conclusively the allocation between capital and income of the
receipts, holdings, expenses and disbursements of the Trust, regardless of
the
allocation which might be considered appropriate in the absence of this
provision.
(n) To
determine conclusively the value from time to time and to revalue the real
estate, securities and other property of the Trust, in accordance with such
appraisals or other information as they deem satisfactory.
(o) To
solicit proxies of the Beneficiaries.
(p) To
adopt a fiscal year for the Trust and to amend or change such fiscal
year.
(q) To
pay taxes and assessments imposed upon or chargeable against the
Trust or the Trustees by virtue of or arising out of the existence, property,
business or activities of the Trust.
(r) To
organize or cause to be organized a corporation or corporations under the laws
of any jurisdiction, or any other trust, association or
other organization to take over Trust property or any part or parts
thereof or to carry on any business in which the Trust shall have any interest;
and to sell, convey and transfer Trust property or any part thereof
to such corporation, trust, association or organization in exchange for the
shares, securities or obligations thereof, and to lend money to,
subscribe for the shares or securities of any such corporation,
trust, association or organization and to enter into contracts with such
corporation, trust, or organization.
(s) The
power to fix the number and the price of the shares of the Trust to be issued
or
to be sold and the terms and conditions for payment of such price or
consideration.
(t) The
power to invest in the shares, securities and obligations of other real estate
investment trusts organized in this or in any other jurisdiction
within the United States or any of its territories or
possessions.
(u) The
Trust shall not have the power to issue face amount certificates
which may bring or subject the Trust to and under the Investment Company Act
of
1940.
(v) The
Trustees shall have the power to authorize the issuance of warrants or options
to purchase shares from time to time to such persons
including themselves on such terms and for such conditions as they
deem advisable, provided that the issuance of such warrants and the exercise
of
such option shall not disqualify the Trust as a Real Estate Investment
Trust.
(w) The
Trustees shall have power to declare dividends and make distribution from time
to time from capital, from depreciation reserve, from income or otherwise,
in
cash, in kind, or in shares.
ARTICLE
VI
Certificates
for the
Shares
6.1
No
Par Value,
Non-Assessable, Non-Callable
The
shares issuable hereunder by the
Trustees shall be of no par value, non-assessable and non-callable.
6.2
Form
of
Certificate
Every
shareholder shall be entitled to
and shall receive a certificate in such form as the Trustees may from time
to
time approve, which certificate shall specify the number of shares held by
the
shareholder. Such certificates shall be in form negotiable and title
thereto and to the share represented thereby shall be transferable by delivery
of such certificate similar in all respects to shares of capital stock of
business corporations, except as set forth in 6.10.
6.3
Register
of
Ownership
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 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 Trustees as shall keep
the
said register for entry thereon.
6.4
Transfer
Agents and
Registrars
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 the said
register and record therein the original issues and transfers, if
any, of the said shares the 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.
6.5
Deposit
with Transfer Agent
of Certificates Signed in Blank
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.
6.6
Transfer
of
Shares
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 of other matters as may reasonably be required, except as set
forth in 6.10. Upon delivery, the transfer shall be recorded on
the register of the Trust and a new certificate for the shares so
transferred shall be issued of the transferee and, in case of a transfer of
only
a part of the shares represented by any certificate, a new certificate for
the
residue thereof shall be issued to the transferor. 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.
6.7
Procedures
Re Shareholder's
Certificate(s) Transferred by Operation of Law
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.
6.8
Special
Designations of Form
of Ownership
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.
6.9
Lost
Certificates
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.
6.10
Sale,
Transfer, Repurchase to Preserve Qualification of the Trust as a
REIT
(a) The
Trustees may refuse to sell shares or to transfer shares to persons or to
entities if in their judgment such sale or transfer may endanger
the qualification of the Trust as a Real Estate Investment
Trust (a "REIT"). The Trustees shall also refuse to issue shares upon
the exercise of an option to purchase shares when in their judgment the exercise
of such option and the issuance of shares might endanger
the qualification of the Trust as a REIT. However, in the
event that the Trustees shall refuse to permit the exercise of an option, the
life of the option shall be extended until such time as the Trustees may
determine that the exercise of such option shall no longer endanger the
qualification of the Trust as a REIT.
(b) If
in the good faith opinion of the Trustees ownership of securities of the Trust
has or may become concentrated to an extent which may prevent the Trust from
qualifying as a REIT, the Trustees shall also have the power, by lot or other
means deemed equitable to them, to call for redemption a number of Trust
Securities sufficient, in the opinion of the Trustees, to maintain or
bring the direct or indirect ownership thereof into conformity with
the requirements for qualification as such a REIT.
ARTICLE
VII
Miscellaneous
7.1
Duration
The
Trust shall have perpetual
existence unless terminated sooner as herein provided.
7.2
Amendment
of
Trust
The
provisions of this Declaration of
Trust may be amended or altered by a two-thirds' vote of all Trustees and such
amendment or alteration shall then be acknowledged and recorded in such offices
as are required for the recording of the original Declaration of
Trust.
7.3
Liability
of Trustees,
Officers or Agents
No
Trustee, officer or agent of this
Trust shall be liable on account of his own acts, neglects, and defaults
(including without limitation the failure to compel in any way any former or
acting Trustee to redress any breach of trust) to this Trust or to any
shareholder, Trustee, officer or agent thereof except for such of his own acts,
neglects, and defaults as constitute a willful breach of trust
knowingly and intentionally committed in bad faith.
7.4
Indemnification
of Trustees,
Officers and Agents
(a) The
Trust shall indemnify each of its Trustees, officers, employees and
agents (including any person who serves at its written request as
director, officer, partner, trustee or the like of another
organization in which it has any interest as a shareholder, creditor
or otherwise) against all liabilities and expenses, including amounts paid
in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees, reasonably incurred by him or in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while acting
as
Trustee or as an officer, employee or agent of the Trust or the Trustees, as
the
case may be, or thereafter, by reason of his being or having been
such a Trustee, officer, employee or agent, except with respect to any matter
as
to which he shall have been adjudicated to have acted in bad faith or with
willful misconduct or reckless disregard of his duties or gross negligence
or
not to have acted in good faith in the reasonable belief that his action was
in
the best interests of the Trust.
(b) As
to any matter disposed of by a compromise payment by such Trustee, officer,
employee or agent, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided
unless such compromise shall be approved as in the best interests of
the Trust by a majority of the disinterested Trustees or the Trust shall have
received a written opinion of independent legal counsel to the effect that
such
Trustee, officer, employee or agent appears to have acted in good faith in
the
reasonable belief that his action was in the best interests of the
Trust.
(c) The
rights accruing to any Trustee, officer, employee or agent under these
provisions shall not exclude any other right to which he may be lawfully
entitled.
(d) No
Trustee, officer, employee or agent may satisfy any
right of indemnity or reimbursement granted herein or to
which he may be otherwise entitled except out of the Trust property; and no
shareholder shall be personally liable to any person with respect to
any claim for indemnity or reimbursement or otherwise.
(e) The
Trustees may make advance payments in connection with indemnification under
this
section, provided that the indemnified Trustee, officer, employee or
agent shall have given a written undertaking to reimburse the Trust in the
event
it is subsequently determined that he is not entitled to such
indemnification.
7.5
Transactions
Where Trustees
Have a Personal
Interest
(a) The
Trust may buy or sell property or any interest therein from and to any
individual Trustee, officer of the Trust, or to any firm, partnership
or corporation in which such Trustee or officer has or may have an
interest, but only in the manner set forth in subparagraph 7.5(b).
(b) Such purchase
or sale shall first be approved at a meeting of the Trustees, and all Trustees
shall be given written notice at least 7 days prior to such meeting that the
approval of such contemplated purchase or sale is among the items of business
to
be discussed at the meeting. No such sale or purchase shall be made unless
all
of the Trustees, who are present and voting at such meeting, shall approve
such
sale or purchase, and unless the number of votes in favor of such sale or
purchase shall constitute at least a majority of the total number of
Trustees. No Trustee who has any direct or indirect interest in such
sale or purchase may participate in the voting.
(c) Subject
to compliance with the provisions of subparagraph 7.5(d), the Trust may buy
or
acquire an interest in the profits and losses, and/or assets and liabilities,
of
a partnership (general or limited), joint venture, limited liability company
or
other form of business organization or entity in which a qualified real estate
investment trust may participate pursuant to the applicable provisions of the
Internal Revenue Code of 1986, as amended, where: (i) a Trustee or
officer of the Trust has an interest in such business organization or entity;
or
(ii) a Trustee or officer of the Trust, and/or any affiliated or related
parties, has a majority or controlling interest in any corporation, partnership
(general or limited), joint venture, limited liability company, or other form
of
business entity which has an interest in such business organization or
entity.
(d) (i) Any
purchase or acquisition subject to the provisions of subparagraph 7.5(c) shall
first be approved and authorized at a meeting of the Trustees. The
Trustees shall be given written notice at least seven (7) days prior to the
meeting that the contemplated purchase or acquisition is among the items of
business to be discussed at the meeting. In conjunction with such
written notice, the Trustees shall also be provided with : (A) a copy
of the proposed form of any contract or agreement setting forth: (I)
the terms, provisions and conditions for the Trust’s purchase or acquisition of
the interest; (II) the rights, entitlements, responsibilities, duties
and obligations of the Trust as a partner, joint venturer, member or participant
in the business organization or entity, and (III) the governance,
management and operations of the business organization or entity,
or
(B) a detailed
summary of the material terms, provisions and conditions of the
transaction.
(ii) Trustees
with a direct or indirect interest in the business organization or entity in
which the Trust proposes to purchase or acquire an interest may be counted
in
determining whether a quorum is present at such meeting.
(iii) No
such purchase or acquisition shall be made unless: (A) a majority of
the Trustees who are present and voting at such meeting shall approve of, and
authorize, the purchase or acquisition;
and
(B) the
number of
votes in favor of such purchase or acquisition shall constitute a majority
of
the total number of Trustees then qualified, elected and serving as Trustees;
and
(C) one
or
more of the disinterested Trustees shall vote in favor of such purchase or
acquisition provided, however, that the number of disinterested Trustees voting
in favor of such purchase or acquisition shall exceed the number of
disinterested Trustees, if any, voting against such purchase or acquisition
by
at least one (1).
(iv) A
Trustee who has a direct or an indirect interest in the purchase or
acquisition: (A) may abstain from the voting to approve or disapprove
of the proposed transaction;
or
(B) may
participate in the voting to approve or disapprove the proposed transaction,
provided
,
that
,
in the event
that a Trustee with a direct or indirect interest intends to participate in
the
voting, the Trustee shall disclose in writing to the other Trustees, at least
seven (7) days prior to the meeting, the nature and extent of the Trustee’s
interest or the interest of affiliated or related parties in the business
organization or entity.
(v) The
Trustees may approve of and authorize any purchase or acquisition of an interest
in any business organization or entity in which a Trustee has, or Trustees
have,
an interest where the transaction set forth in the contracts or agreements
described in subparagraph 7.5(d)(i) are fair and reasonable as to the Trust
at
the time of approval and authorization by the Trustees. For purposes
of determining whether a proposed transaction is fair and reasonable as to
the
Trust, the Trustees may consider, among other things, the following
factors:
(A) the
consideration to be paid, or the capital contribution to be made, by the Trust
for its interest in the business organization or entity shall be in the same
form as, and, on a proportional basis, on a par with the consideration paid
or
to be paid, or the capital contribution made or to be made, by the Trustee
for
the Trustee’s interest in the business organization and entity;
and
,
(B) under
the contracts or agreements described in subparagraph 7.5(d)(i), there shall
be: (A) no difference or distinction in the voting rights granted to,
and/or held or exercised by, the Trust and the Trustee with respect to all
matters and affairs of the business organization or entity, including, but
not
limited to governance, management, operations, financing, refinancing,
distributions of profits and losses, allocation of income and expenses
allocations of profits and losses, distributions of capital or the dissolution,
liquidation and/or termination of the business organization or entity; and
(B)
no difference or distinction in the rights granted to the Trust and the Trustee
to share or participate in, or receive distributions or allocations of, profits
and losses, or capital,
except
for such
differences or distinctions as may arise from the quantum of the respective
interests held by the Trust and the Trustee, subject to the requirements of
(d)(v)(C) below;
and
;
(C) the
quantum of the interest of the Trust in the business organization or entity,
in
terms of voting rights
and
the right
to
share or participate in, or receive, distributions or allocations of profits
and
losses, or capital, shall be greater than the interest of the Trustee and/or
the
aggregate interests of all Trustees in the business organization or entity
(including the interest of affiliated and related parties);
and
,
(D) the
Trust shall be responsible for the management of the affairs of the business
organization or entity under the contracts or agreements described in
subparagraph 7.5(d)(i).
(vi) Any
matters related to the management of the affairs of the business organization
or
entity shall be scheduled for the consideration of the Trustees, and determined
and voted upon, in the same manner as provided for in this paragraph
(d).
(vii) Notwithstanding
anything contained herein, any interested Trustee who determines to participate
in the voting with respect to the proposed purchase or acquisition and votes
on
the proposed purchase or acquisition:
(A) shall
exercise prudent and careful business judgment in good faith in evaluating
whether the Trust should make the purchase or acquisition investment in light
of
the Trust’s purposes, objectives and statements of policy;
(B) shall
state for the record at the meeting the specific reasons for his/her vote on
the
resolution concerning the purchase;
and
,
(C) shall
not be automatically immunized by virtue of the existence of, or compliance
with, provisions of subparagraphs 7.5(c) or (d) from any actions, suits or
proceedings, whether at law or in equity, or by or before any administrative
officer, agency or tribunal, for breach of any statutory or common law duty
which may be owed to the shareholders of the Trust or to the other
Trustees.
7.6
Prohibition
on Sales or
Purchase From Certain Independent Contractors
The
Trust shall not buy or sell
property or any interest therein, from or to the independent contractors, that
may be retained by the Trustees for the management of the properties or business
of the Trust.
7.7
Governing
Law
This
Declaration of Trust is created,
issued and controlled and shall be construed under and by the laws of the State
of New Jersey.
IN
WITNESS WHEREOF, the undersigned
have signed and sealed this instrument as of the 7th day of November,
1983.
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/s/
Garo Artinian
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(L.S.)
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GARO
ARTINIAN
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/s/
Donald W. Barney
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(L.S.)
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DONALD
W. BARNEY
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/s/
Robert S. Hekemian
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(L.S.)
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ROBERT
S. HEKEMIAN
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/s/
John G. Keuhnelian
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(L.S.)
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JOHN
G. KEUHNELIAN
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/s/
Herbert C. Klein
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(L.S.)
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HERBERT
C. KLEIN
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/s/
Nicholas A. Laganella
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(L.S.)
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NICOLAS
A. LAGANELLA
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/s/
John B. Voskian
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(L.S.)
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JOHN
B. VOSKIAN
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STATE
OF NEW JERSEY
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:
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: SS:
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COUNTY
OF BERGEN
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:
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I
CERTIFY
THAT ON
November
23rd
, 1983, GARO ARTINIAN personally came before me and acknowledged
under oath, to my satisfaction, that this person:
(a) is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Robert S. Hekemian
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ROBERT
S. HEKEMIAN
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PREPARED
BY:
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
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Attorney
of Law at New Jersey
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STATE
OF NEW JERSEY
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:
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: SS:
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COUNTY
OF BERGEN
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:
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I
CERTIFY
THAT ON
November
23rd
, 1983, DONALD W. BARNEY personally came before
me and acknowledged under oath, to my satisfaction, that this
person:
(a) is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Robert S. Hekemian
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ROBERT
S. HEKEMIAN
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PREPARED
BY:
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
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Attorney
of Law at New Jersey
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STATE
OF NEW JERSEY
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:
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: SS:
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COUNTY
OF BERGEN
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:
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I
CERTIFY
THAT ON
November
23rd,
1983, ROBERT S. HEKEMIAN personally came before me and acknowledged
under oath, to my satisfaction, that this person:
(a) is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Serge Krikorian
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SERGE
KRIKORIAN
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PREPARED
BY:
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
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Attorney
of Law at New Jersey
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STATE
OF NEW JERSEY
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:
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: SS:
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COUNTY
OF BERGEN
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:
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I
CERTIFY
THAT ON
November
23rd,
1983, JOHN G. KEUHNELIAN personally came before me and acknowledged
under oath, to my satisfaction, that this person:
(a)
is
named in and personally signed this document; and
(b)
signed, sealed and delivered this document as his act and deed.
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/s/
Robert S. Hekemian
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ROBERT
S. HEKEMIAN
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PREPARED
BY:
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
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|
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Attorney
of Law at New Jersey
|
|
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STATE
OF NEW JERSEY
|
:
|
|
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: SS:
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COUNTY
OF BERGEN
|
:
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I
CERTIFY
THAT ON
November
23rd
, 1983, HERBERT C. KLEIN personally came before
me and acknowledged under oath, to my satisfaction, that this
person:
(a)
is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Michael Saffer
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MICHAEL
SAFFER
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An
Attorney at Law of the
|
|
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State
of New Jersey
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PREPARED
BY:
|
|
|
|
|
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/s/
Philip L. Chapman
|
|
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PHILIP
L. CHAPMAN,
|
|
|
Attorney
of Law at New Jersey
|
|
|
|
|
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STATE
OF NEW JERSEY
|
:
|
|
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: SS:
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COUNTY
OF BERGEN
|
:
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I
CERTIFY
THAT ON
November 23rd
, 1983, NICOLAS
A. LAGANELLA personally came before me and acknowledged
under oath, to my satisfaction, that this person:
(a) is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Robert S. Hekemian
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ROBERT
S. HEKEMIAN
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PREPARED
BY:
|
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
|
|
|
Attorney
of Law at New Jersey
|
|
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STATE
OF NEW JERSEY
|
:
|
|
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: SS:
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COUNTY
OF BERGEN
|
:
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I
CERTIFY
THAT ON
November
23rd,
1983, JOHN B. VOSKIAN personally came before me and acknowledged
under oath, to my satisfaction, that this person:
(a) is
named in and personally signed this document; and
(b) signed,
sealed and delivered this document as his act and deed.
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/s/
Robert S. Hekemian
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|
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ROBERT
S. HEKEMIAN
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PREPARED
BY:
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/s/
Philip L. Chapman
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PHILIP
L. CHAPMAN,
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Attorney
of Law at New Jersey
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DECLARATION
OF
TRUST
-
of
-
THE
FIRST
REAL ESTATE INVESTMENT
TRUST
OF
NEW JERSEY
______________________________________________
Dated:
November , 1983
_____________________________________________
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RECORD
& RETURN TO:
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PHILIP
L. CHAPMAN, ESQ.
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KLEIN,
CHAPMAN, DiIANNI,
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GREENBERG,
HENKOFF & SIEGEL
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935
Allwood Road
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P.
O. Box 2048
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Clifton,
N.J. 07015
|
AMENDMENT
TO
AMENDED
AND RESTATED DECLARATION OF
TRUST
OF
FIRST
REAL ESTATE INVESTMENT TRUST OF
NEW JERSEY
The
text
of Article IV, Section 4.2 of the Declaration of Trust which is currently stated
as follows:
“Except
for the initial Board of
Trustees, each Trustee shall be elected for a term of 3 years and shall continue
in office until qualification of his successor elected at the annual meeting
of
shareholders. The term of at least two trustees shall expire every
year.”
shall
be
deleted in its entirety and the following text shall be substituted
therefor:
“Each
Trustee shall be elected for a
term of 2 years or 3 years, as determined by the Board of Trustees at the time
a
Trustee is nominated for election, and shall continue in office until
qualification of his successor elected at the annual meeting of
shareholders.”
Amended
On: January 21, 2004
AMENDMENT
TO
AMENDED
AND RESTATED DECLARATION OF
TRUST
OF
FIRST
REAL ESTATE INVESTMENT TRUST OF
NEW JERSEY
The
text
of Article IV, Section 4.6 of the Declaration of Trust which had been previously
stated as follows:
“Section
4.6
Vacancies
The
resignation , removal, incompetency, disqualification or death of any or all
of
the Trustees shall not terminate the Trust or affect its continuity; and any
vacancy caused by the resignation, removal, incompetency, disqualification
or
death of any Trustee or Trustees shall not void, vitiate or invalidate any
act
or transactions made or done by the Trustees otherwise valid and
proper. During a vacancy, the remaining Trustee or Trustees may
exercise the powers of the Trustees hereunder. Vacancies among the
Trustees may be filled by a written designation signed by a majority of the
remaining Trustees and lodged among the records of the Trust. The
determination of a vacancy among the Trustees by reason of resignation,
incompetency, disqualification or death, when made by a majority of the
remaining Trustees and stated in the instrument filling such vacancy, shall
be
final and conclusive for all purposes.”
was
amended to read as follows:
“Section
4.6
Filling
Vacancies
The
resignation , removal,
incompetency, disqualification or death of any or all of the Trustees shall
not
terminate the Trust or affect its continuity; and any vacancy caused by the
resignation, removal, incompetency, disqualification or death of any Trustee
or
Trustees shall not void, vitiate or invalidate any act or transactions made
or
done by the Trustees otherwise valid and proper. During a vacancy,
the remaining Trustee or Trustees may exercise the powers of the Trustees
hereunder. Vacancies among the Trustees and newly created
trusteeships resulting from an increase in the number of trustees may be filled
by a written designation signed by a majority of the remaining Trustees and
lodged among the records of the Trust. A trustee so elected by the
Board of Trustees shall hold office until the next succeeding annual meeting
of
shareholders and until his successor shall have been elected and
qualified. The determination of a vacancy among the Trustees by
reason of resignation, incompetency, disqualification or death, when made by
a
majority of the remaining Trustees and stated in the instrument filling such
vacancy, shall be final and conclusive for all purposes.”
Amended
On: May 15, 2007
AMENDMENT
TO
AMENDED
AND RESTATED DECLARATION OF
TRUST
OF
FIRST
REAL ESTATE INVESTMENT TRUST OF
NEW JERSEY
The
text
of Article IV, Section 4.3 of the Declaration of Trust which is currently stated
as follows:
The
Trustees shall be individuals of full age, and no person shall qualify as a
Trustee until he shall have either, signed this Declaration of Trust or agreed
in writing to be bound in all respects by the Declaration. No person
shall be qualified to act as Trustee who has purchased or subscribed for less
than 500 shares of the Trust. In the event that a Trustee's
shareholding shall fall below 500 shares, the Secretary shall give such Trustee
10 days written notice of his apparent disqualification and during said period
of 10 days such Trustee shall have the opportunity to correct such
disqualification by acquiring the necessary amount of shares. Upon
his failure to do so within the said 10 days, he shall be disqualified and
shall
be relieved of his duties and powers as such Trustee. The Trustees
shall be under no obligation to issue or to sell the necessary
shares to such apparently disqualified Trustee for the purpose of
restoring or correcting his qualification. No person shall serve as
Trustee who has attained 76 years of age; provided however, in the event any
Trustee shall reach the age of 76 during his or her term of office, the Trustee
shall be permitted to complete his or her then current term.”
shall
be
deleted in its entirety and the following text shall be substituted
therefor:
“4.3
Qualifications
The
Trustees shall be individuals of full age, and no person shall qualify as a
Trustee until he shall have either, signed this Declaration of Trust or agreed
in writing to be bound in all respects by the Declaration. No person
shall be qualified to act as Trustee who has purchased or subscribed for less
than 500 shares of the Trust. In the event that a Trustee's
shareholding shall fall below 500 shares, the Secretary shall give such Trustee
10 days written notice of his apparent disqualification and during said period
of 10 days such Trustee shall have the opportunity to correct such
disqualification by acquiring the necessary amount of shares. Upon
his failure to do so within the said 10 days, he shall be disqualified and
shall
be relieved of his duties and powers as such Trustee. The Trustees
shall be under no obligation to issue or to sell the necessary
shares to such apparently disqualified Trustee for the purpose of
restoring or correcting his qualification.”
Amended
On: March 4, 2008