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Exhibit 3.1

 

HOSPITALITY PROPERTIES TRUST

 

AMENDED AND RESTATED

DECLARATION OF TRUST

 

Dated May 12, 1995

As Amended and Restated on August 21, 1995

and Amended on June 2, 1997

and Amended on May 24, 2006
and Amended on March 5, 2007
and Amended on May 15, 2007

and Amended on April 15, 2010

 



 

Table of Contents

 

 

 

Page

 

 

 

ARTICLE I

THE TRUST; DEFINITIONS

4

1.1.

Name

4

1.2.

Place of Business

4

1.3.

Nature of Trust

4

1.4.

Definitions

4

ARTICLE II

TRUSTEES

7

2.1.

Number, Term of Office and Qualification of Trustees

7

2.2.

Compensation and Other Remuneration

8

2.3.

Resignation, removal and Death of Trustees

8

2.4.

Vacancies

8

2.5.

Successor and Additional Trustees

9

2.6.

Actions by Trustees

9

2.7.

Committees

9

ARTICLE III

TRUSTEES’ POWERS

10

3.1.

Power and Authority of Trustees

10

3.2.

Specific Powers and Authority

10

3.3.

Bylaws

14

ARTICLE IV

INVESTMENT POLICY AND POLICIES WITH RESPECT TO CERTAIN DISTRIBUTIONS TO SHAREHOLDERS

14

4.1.

Statement of Policy

14

4.2.

Prohibited Investments and Activities

15

4.3.

Change in Investment Policies

15

ARTICLE V

THE SHARES AND SHAREHOLDERS

15

5.1.

Description of Shares

15

5.2.

Certificates, Ownership of Shares shall be evidenced by certificates

16

5.3.

Fractional Shares

17

5.4.

Legal Ownership of Trust Estate

17

5.5.

Shares Deemed Personal Property

17

5.6.

Share Record; Issuance and Transferability of Shares

17

5.7.

Dividends or Distributions to Shareholders

18

5.8.

Transfer Agent, Dividend Disbursing Agent and Registrar

18

5.9.

Shareholders’ Meetings

18

5.10.

Proxies

19

5.11.

[Reserved]

19

5.12.

Fixing Record Date

19

5.13.

Notice to Shareholders

19

5.14.

Shareholders’ Disclosure; Restrictions on Share Transfer;

 

 

Limitation on Holdings

20

5.15.

Special Voting Provisions relating to Certain Business Combinations and Control Shares

22

ARTICLE VI

LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS, AND OTHER MATTERS

23

 

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Page

 

 

 

6.1.

Limitation of Liability of Shareholders, Trustees, Officers, Employees and Agents for Obligations of the Trust

23

6.2.

Express Exculpatory Clauses and Instruments

23

6.3.

Limitation of Liability of Trustees, Officers, Employees and Agents to the Trust and to Shareholders for Acts and Omissions

23

6.4.

Indemnification and Reimbursement of Trustees, Officers, Employees, Agents and Certain Other Persons

23

6.5.

Indemnification and Reimbursement of Shareholders

24

6.6.

Right of Trustees, Officers, Employees and Agents to Own Shares or Other Property and to Engage in Other Business

24

6.7.

Transactions Between Trustees, Officers, Employees or Agents and the Trust

25

6.8.

Persons Dealing with Trustees, Officers, Employees or Agents

25

6.9.

Reliance

26

ARTICLE VII

DURATION, AMENDMENT AND TERMINATION OF TRUST

26

7.1.

Duration of Trust

26

7.2.

Termination of Trust

26

7.3.

Amendment Procedure

27

7.4.

Amendments Effective

27

7.5.

Transfer to Successor

27

ARTICLE VIII

MISCELLANEOUS

28

8.1.

Applicable Law

28

8.2.

Index and Headings for Reference Only

28

8.3.

Successors in Interest

28

8.4.

Inspection of Records

28

8.5.

Counterparts

28

8.6.

Provisions of the Trust in Conflict with Law or Regulations; Severability

28

8.7.

Certifications

29

8.8.

Indemnification of the Trust

29

 

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AMENDED AND RESTATED

 

DECLARATION OF TRUST

 

OF

 

HOSPITALITY PROPERTIES TRUST

 

Dated May 12, 1995

As Amended and Restated on August 21, 1995

and Amended on June 2, 1997

and Amended on May 24, 2006
and Amended on March 5, 2007
and Amended on May 15, 2007
and Amended on April 15, 2010

 

The Declaration of Hospitality Properties Trust, as filed with the Maryland Department of Assessments and Taxation on May 12, 1995 is hereby amended and restated as follows:

 

DECLARATION OF TRUST made as of the date set forth above by the undersigned Trustees.

 



 

WITNESSETH :

 

WHEREAS, the Trustees desire to create a trust for the principal purpose of investing in real property and interests therein; and

 

WHEREAS, the Trustees desire that such trust qualify as a “qualified REIT subsidiary” as long as it shall remain wholly owned by Health and Retirement Properties Trust (“HRP”) and, thereafter, as a “real estate investment trust” under the REIT Provisions of the Internal Revenue Code, and as a “real estate investment trust” under Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland; and

 

WHEREAS, in furtherance of such purpose the Trustees intend to acquire certain real property and interests therein and to hold, manage and dispose of all such property as Trustees in the manner hereinafter stated; and

 

WHEREAS, it is proposed that the beneficial interest in the Trust be divided into transferable Shares of Beneficial Interest, evidenced by certificates therefor, as hereinafter provided;

 

NOW, THEREFORE, it is hereby agreed and declared that the Trustees will hold any and all property of every type and description which they are acquiring or may hereafter acquire as Trustees, together with the proceeds thereof, in trust, to manage and dispose of the same for the benefit of the holders from time to time of the Shares of Beneficial Interest being issued and to be issued hereunder in the manner and subject to the stipulations contained herein.

 

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ARTICLE I

 

THE TRUST; DEFINITIONS

 

1.1.          Name . The name of the Trust created by this Declaration of Trust shall be “Hospitality Properties Trust” and so far as may be practicable the Trustees shall conduct the Trust’s activities, execute all documents and sue or be sued under that name, which name (and the word “Trust” wherever used in this Declaration of Trust, except where the context otherwise requires) shall refer to the Trustees collectively but not individually or personally nor to the officers, agents, employees or Shareholders of the Trust or of such Trustees. Under circumstances under which the Trustees determine that the use of such name is not practicable or under circumstances in which the Trustees are contractually bound to change that name, they may use such other designation or they may adopt another name under which the Trust may hold property or conduct its activities.

 

1.2.          Places of Business . The Trust shall maintain an office in Maryland at The Prentice-Hall Corporation System, Maryland, 11 East Chase Street, Baltimore City, Maryland, 21202 or such other place in Maryland as the Trustees may determine from time to time. The Resident Agent of the Trust at such office shall be The Prentice-Hall Corporation System, Maryland. The Trust may change such Resident Agent from time to time as the Trustees shall determine. The Trust may have such other offices or places of business within or without the State of Maryland as the Trustees may from time to time determine.

 

1.3.          Nature of Trust . The Trust shall be a real estate investment trust within the meaning of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland. It is also intended that the Trust shall carry on a business as a “qualified REIT subsidiary” as described in the REIT Provisions of the Internal Revenue Code for so long as it is wholly owned by HRP and thereafter shall qualify and carry on business as a “real estate investment trust” as described therein. The Trust is not intended to be, shall not be deemed to be, and shall not be treated as a general partnership, limited partnership, joint venture, corporation or joint stock company (but nothing herein shall preclude the Trust from being treated for tax purposes as an association under the Internal Revenue Code); nor shall the Trustees or Shareholders or any of them for any purpose be, nor be deemed to be, nor be treated in any way whatsoever as, liable or responsible hereunder as partners or joint venturers. The relationship of the Shareholders to the Trustees shall be solely that of beneficiaries of the Trust in accordance with the rights conferred upon them by this Declaration.

 

1.4.         Definitions . The terms defined in this Section 1.4, wherever used in this Declaration, shall, unless the context otherwise requires, have the respective meanings hereinafter specified. Whenever the singular number is used in this Declaration and when permitted by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa. Where applicable, calculations to be made pursuant to any such definition shall be made in accordance with generally accepted accounting principles as in effect from time to time except as otherwise provided in such definition.

 

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(a)           Advisor . “Advisor” shall mean HRPT Advisors, Inc., a Delaware corporation, or such other Person as the Trustees shall from time to time engage to supervise the operation of the Trust and to provide the Trust with a program of investments.

 

(b)           Affiliate . “Affiliate” shall mean, as to any Person, (i) any other Person who, at the time of determination, is directly or indirectly controlling, controlled by or under common control with such Person, (ii) any other Person who, at such time, owns beneficially, directly or indirectly, five percent (5%) or more of the outstanding capital stock, shares or equity interests of such Person, or (iii) any Person who is at the time of determination an officer, director, employee, general partner or trustee of any such Person or of any Person who, at such time, is controlling, controlled by or under common control with such Person (excluding any trustee who is not otherwise an Affiliate of such Person).

 

(c)           Annual Meeting of Shareholders . “Annual Meeting of Shareholders” shall mean the meeting described in the first sentence of Section 5.9.

 

(d)           Annual Report . “Annual Report” shall have the meaning set forth in Section 5.11(a).

 

(e)           Book Value . “Book Value” of an asset or assets shall mean the value of such asset or assets of the Trust on the books of the Trust, without deduction for depreciation or other asset valuation reserves and without deduction for mortgages or other security interests to which such asset or assets are subject, except that no asset shall be valued at more than its fair market value as determined by or under procedures adopted by the Trustees, and the underlying assets of a partnership, joint venture or other form of indirect ownership, to the extent of the Trust’s interest therein, shall be valued as if owned directly by the Trust.

 

(f)           Bylaws . “Bylaws” shall have the meaning set forth in Section 3.3.

 

(g)           Declaration . “Declaration” or “this Declaration” shall mean this Declaration of Trust, as amended, restated or modified from time to time. The use in this Declaration of “herein” and “hereunder” shall be deemed to refer to this Declaration and shall not be limited to the particular text, article or section in which such words appear.

 

(h)           Independent Trustee . “Independent Trustee” shall mean a Trustee who is not then an officer of the Trust or an Affiliate of the Advisor.

 

(i)            Internal Revenue Code . “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as now enacted or hereafter amended, or successor statutes and applicable rules and regulations thereunder.

 

(j)            Invested Assets . “Invested Assets” shall mean the Book Value of all the Real Estate Investments of the Trust.

 

(k)           Mortgage Loans . “Mortgage Loans” shall mean notes, debentures, bonds and other evidences of indebtedness or obligations, whether negotiable or non-negotiable, which are secured or collateralized by Mortgages.

 

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(l)            Mortgages . “Mortgages” shall mean mortgages, deeds of trust or other security interests in Real Property.

 

(m)          Person . “Person” shall mean and include individuals, corporations, limited partnerships, general partnerships, joint stock companies or associations, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts and other entities and governments and agencies and political subdivisions thereof.

 

(n)           Real Estate Investment . “Real Estate Investment” shall mean any direct or indirect investment in any interest in Real Property or in any Mortgage Loan, or in any Person whose principal purpose is to make any such investment.

 

(o)           Real Property . “Real Property” shall mean and include land, leasehold interests (including but not limited to interests of a lessor or lessee therein), rights and interests in land, and in any buildings, structures, improvements, furnishings and fixtures located on or used in connection with land or interests therein, but does not include investments in Mortgages, Mortgage Loans or interests therein.

 

(p)           REIT . “REIT” shall mean a real estate investment trust as defined in the REIT Provisions of the Internal Revenue Code.

 

(q)           REIT Provisions of the Internal Revenue Code . “REIT Provisions of the Internal Revenue Code” shall mean Parts II and III of Subchapter M of Chapter 1 of Subtitle A of the Internal Revenue Code or any successor provision.

 

(r)            Securities . “Securities” shall mean any stock, shares, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in, temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe to, purchase or acquire any of the foregoing.

 

(s)            Shareholders . “Shareholders” shall mean as of any particular time all holders of record of outstanding Shares at such time.

 

(t)            Shares . “Shares” or, as the context may require, “shares” shall mean the shares of beneficial interest of the Trust as described in Section 5.1 hereof.

 

(u)            Trust . “Trust” shall mean the Trust created by this Declaration.

 

(v)           Trustees . “Trustees” shall mean, as of any particular time, the original signatories hereto as long as they hold office hereunder and additional and successor Trustees, and shall not include the officers, employees or agents of the Trust or the Shareholders. Nothing herein shall be deemed to preclude the Trustees from also serving as officers, employees or agents of the Trust or owning Shares.

 

(w)          Trust Estate . “Trust Estate” shall mean as of any particular time any and all property, real, personal or otherwise, tangible or intangible, which is transferred, conveyed or

 

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paid to or purchased by the Trust or Trustees and all rents, income, profits and gains therefrom and which at such time is owned or held by or for the Trust or the Trustees.

 

ARTICLE II

 

TRUSTEES

 

2.1.           Number, Term of Office and Qualifications of Trustees .

 

(a)           The number of Trustees initially need not be more than one (1).

 

(i)           If a Person other than HRP acquires any Shares of Beneficial Interest of the Trust, the number of Trustees shall thenceforth be no fewer than three (3) and no more than seven (7). Upon acquisition by a Person other than HRP of any such Shares, the exact number of Trustees shall be five (5) until changed by a two-thirds (2/3) vote of the Trustees or by an amendment of this Declaration duly adopted by holders of two-thirds (2/3) of the outstanding Shares entitled to vote. Any vacancies in the Board of Trustees created thereby shall be filled by a majority of the Trustees then in office. The Board of Trustees thus constituted shall be classified into three groups, with two (2) Trustees in Group I, two (2) Trustees in Group II, and one (1) Trustee in Group II. The Trustee in Group III shall serve for a term ending at the next annual meeting of Shareholders after such acquisition of Shares by a Person other than HRP; each Trustee in Group II shall serve for a term ending at the following annual meeting of Shareholders; and each Trustee in Group I shall serve for a term ending at the second following annual meeting of Shareholders. After the respective terms of the groups indicated, each such group of Trustees shall be elected for successive terms ending at the annual meeting of Shareholders held during the third year after election.

 

(ii)          A majority of the Trustees holding office subject to the foregoing provisions of this paragraph (ii) shall at all times be Independent Trustees; provided, however, that upon a failure to comply with this requirement as a result of the creation of a vacancy which must be filled by an Independent Trustee, whether as a result of enlargement of the Board of Trustees or the resignation, removal or death of a Trustee who is an Independent Trustee, such requirement shall not be applicable for a period of ninety (90) days.

 

(b)          The names and business addresses of the initial Trustees, who shall serve as Trustees until the first annual meeting of Shareholders (unless their terms shall be otherwise classified pursuant to Section 2.1(a)(ii)) and until their successors shall have been elected and qualified are as follows:

 

Name:

Barry M. Portnoy

Address:

Sullivan & Worcester
One Post Office Square
Boston, MA 02109

 

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Name:

Gerard M. Martin

Address:

M & P Partners Limited Partnership
400 Centre Street
Newton, MA 02158

 

The initial Trustees shall be the signatories hereto. No reduction in the number of Trustees shall have the effect of removing any Trustee from office prior to the expiration of his term. Subject to the provisions of Section 2.3, each Trustee shall hold office until the election and qualification of his successor. There shall be no cumulative voting in the election of Trustees. A Trustee shall be an individual at least twenty-one (21) years of age who is not under legal disability. Unless otherwise required by law, no Trustee shall be required to give bond, surety or security in any jurisdiction for the performance of any duties or obligations hereunder. The Trustees in their capacity as Trustees shall not be required to be Shareholders or to devote their entire time to the business and affairs of the Trust.

 

2.2.          Compensation and Other Remuneration . The Trustees shall be entitled to receive such reasonable compensation for their services as Trustees as the Trustees may determine from time to time. The Trustees and Trust officers shall be entitled to receive remuneration for services rendered to the Trust in any other capacity. Subject to Sections 6.6 and 6.7, such services may include, without limitation, services as an officer of the Trust, legal, accounting or other professional services, or services as a broker, transfer agent or underwriter, whether performed by a Trustee or any Person affiliated with a Trustee.

 

2.3.         Resignation, Removal and Death of Trustees . A Trustee may resign at any time by giving written notice to the remaining Trustees at the principal office of the Trust. Such resignation shall take effect on the date specified in such notice, without need for prior accounting. A Trustee may be removed at any time with or without cause by the affirmative vote either of all the remaining Trustees or of the holders of Shares representing two-thirds of the total votes authorized to be cast by Shares then outstanding and entitled to vote thereon, voting as a single class. A Trustee judged incompetent or for whom a guardian or conservator has been appointed shall be deemed to have resigned as of the date of such adjudication or appointment. Upon the resignation or removal of any Trustee, or his otherwise ceasing to be a Trustee, he shall execute and deliver such documents as the remaining Trustees shall require for the conveyance of any Trust property held in his name, shall account to the remaining Trustees as they require for all property which he holds as Trustee and shall thereupon be discharged as Trustee. Upon the incapacity or death of any Trustee, his legal representative shall perform the acts set forth in the preceding sentence and the discharge mentioned therein shall run to such legal representative and to the incapacitated Trustee or the estate of the deceased Trustee, as the case may be.

 

2.4.         Vacancies . If any or all the Trustees cease to be Trustees hereunder, whether by reason of resignation, removal, incapacity, death or otherwise, such event shall not terminate the Trust or affect its continuity. Until vacancies are filled, the remaining Trustee or Trustees (even though fewer than three (3)) may exercise the powers of the Trustees hereunder. Vacancies (including vacancies created by increases in number) may be filled by the remaining Trustee or by a majority of the remaining Trustees. If at any time there shall be no Trustees in office,

 

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successor Trustees shall be elected by the Shareholders as provided in Section 5.9. Any Trustee elected to fill a vacancy created by the resignation, removal or death of a former Trustee shall hold office for the unexpired term of such former Trustee.

 

2.5.          Successor and Additional Trustees . The right, title and interest of the Trustees in and to the Trust Estate shall also vest in successor and additional Trustees upon their qualification, and they shall thereupon have all the rights and obligations of Trustees hereunder. Such right, title and interest shall vest in the Trustees whether or not conveyancing documents have been executed and delivered pursuant to Section 2.3 or otherwise. Appropriate written evidence of the election and qualification of successor and additional Trustees shall be filed with the records of the Trust and in such other offices or places as the Trustees may deem necessary, appropriate or desirable.

 

2.6.         Actions by Trustees . The Trustees may act with or without a meeting. A quorum for all meetings of the Trustees shall be a majority of the Trustees; provided, however, that, whenever pursuant to Section 6.7 or otherwise the vote of a majority of a particular group of Trustees is required at a meeting, a quorum for such meeting shall be a majority of the Trustees which shall include a majority of such group. Unless specifically provided otherwise in this Declaration, any action of the Trustees may be taken at a meeting by vote of a majority of the Trustees present (a quorum being present) or without a meeting by written consents of a majority of the Trustees, which consents shall be filed with the records of meetings of the Trustees. Any action or actions permitted to be taken by the Trustees in connection with the business of the Trust may be taken pursuant to authority granted by a meeting of the Trustees conducted by a telephone conference call, and the transaction of Trust business represented thereby shall be of the same authority and validity as if transacted at a meeting of the Trustees held in person or by written consent. The minutes of any Trustees’ meeting held by telephone shall be prepared in the same manner as a meeting of the Trustees held in person. The acquisition or disposition of any investment (other than investments in short-term investment Securities described in Section 4.1) shall require the approval of a majority of Trustees, except a


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