EXHIBIT 4-1
Published on September 10, 1997
ENTERTAINMENT PROPERTIES TRUST
DECLARATION OF TRUST
DATED AUGUST 21, 1997
This DECLARATION OF TRUST is made as of the date set forth above by
the undersigned Trustee (as defined herein).
ARTICLE I
FORMATION
The Trust is a real estate investment trust within the meaning of
Title 8 of the Corporations and Associations Article of the Annotated Code of
Maryland, as amended from time to time ("Title 8"). The Trust shall not be
deemed to be a general partnership, limited partnership, joint venture, joint
stock company or a corporation (but nothing herein shall preclude the Trust from
being treated for tax purposes as an association under the Internal Revenue Code
of 1986, as amended from time to time (the "Code")).
ARTICLE II
NAME
The name of the Trust is:
Entertainment Properties Trust
Under circumstances in which the Board of Trustees of the Trust (the
"Board of Trustees" or "Board") determines that the use of the name of the Trust
is not practicable, the Trust may use any other designation or name for the
Trust.
ARTICLE III
PURPOSES AND POWERS
Section 1. PURPOSES. The purposes for which the Trust is formed are
to invest in and to acquire, hold, manage, administer, control and dispose of
property, including, without limitation or obligation, engaging in business as a
real estate investment trust under the Code.
Section 2. POWERS. The Trust shall have all of the powers granted to
real estate investment trusts by Title 8 and all other powers which are not
inconsistent with law and are
appropriate to promote and attain the purposes set forth in the Declaration of
Trust.
ARTICLE IV
RESIDENT AGENT
The name of the resident agent of the Trust in the State of Maryland
is James J. Hanks, Jr., whose post office address is c/o Ballard Spahr Andrews
& Ingersoll, 300 East Lombard Street, Baltimore, Maryland 21202. The resident
agent is a citizen of and resides in the State of Maryland. The Trust may have
such offices or places of business within or outside the State of Maryland as
the Board of Trustees may from time to time determine.
ARTICLE V
BOARD OF TRUSTEES
Section 1. POWERS. Subject to any express limitations contained in
the Declaration of Trust or in the Bylaws, (a) the business and affairs of the
Trust shall be managed under the direction of the Board of Trustees and (b) the
Board shall have full, exclusive and absolute power, control and authority over
any and all property of the Trust. The Board may take any action as in its sole
judgment and discretion is necessary or appropriate to conduct the business and
affairs of the Trust. The Declaration of Trust shall be construed with the
presumption in favor of the grant of power and authority to the Board. Any
construction of the Declaration of Trust or determination made in good faith by
the Board concerning its powers and authority hereunder shall be conclusive.
The enumeration and definition of particular powers of the Board of Trustees
included in the Declaration of Trust or in the Bylaws shall in no way be limited
or restricted by reference to or inference from the terms of this or any other
provision of the Declaration of Trust or the Bylaws or construed or deemed by
inference or otherwise in any manner to exclude or limit the powers conferred
upon the Board or the trustees of the Trust (collectively, the "Trustees" and,
individually, a "Trustee") under the general laws of the State of Maryland or
any other applicable laws.
The Board, without any action by the shareholders of the Trust
(collectively, the "Shareholders" and, individually, a "Shareholder"), shall
have and may exercise, on behalf of the Trust, without limitation, the power to
terminate the status of the Trust as a real estate investment trust under the
Code; to adopt, amend and repeal Bylaws; to elect officers
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in the manner prescribed in the Bylaws; to solicit proxies from holders of
shares of beneficial interest of the Trust; and to do any other acts and deliver
any other documents necessary or appropriate to the foregoing powers.
Section 2. NUMBER. The number of Trustees initially shall be one,
which number may thereafter be increased or decreased by the Trustees then in
office from time to time; however, the total number of Trustees shall be not
less than one and not more than 15. No reduction in the number of Trustees
shall cause the removal of any Trustee from office prior to the expiration of
his term.
Section 3. INITIAL BOARD. The name and address of the Trustee who
shall serve until the earlier of the first annual meeting and until his
successor is duly elected and qualifies is:
NAME ADDRESS
Peter C. Brown c/o AMC Entertainment Inc.
106 W. 14th Street
Kansas, MO 64105
Section 4. TERM. The Trustees shall be elected at each annual
meeting of the Shareholders and shall serve until the next annual meeting of the
Shareholders and until their successors are duly elected and qualify.
Section 5. REMOVAL. A Trustee may be removed, at any time, with or
without cause, by the affirmative vote of the holders of a majority of the
Shares then outstanding and entitled to vote generally in the election of
Trustees.
ARTICLE VI
SHARES OF BENEFICIAL INTEREST
The beneficial interest in the Trust shall be divided into shares of
beneficial interest ("Shares"). The total number of Shares which the Trust has
authority to issue is 1,000 Common Shares, $.01 par value per share. The Board
of Trustees may classify or reclassify any unissued Shares from time to time by
setting or changing the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications
or terms or conditions of redemption of the Shares.
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The Board of Trustees may authorize the issuance from time to time of
Shares of any class or series, whether now or hereafter authorized, or
securities or rights convertible into Shares of any class or series, whether now
or hereafter authorized, for such consideration (whether in cash, property, past
or future services, obligation for future payment or otherwise) as the Board of
Trustees may deem advisable (or without consideration in the case of a Share
split or Share dividend), subject to such restrictions or limitations, if any,
as may be set forth in the Declaration of Trust or the Bylaws of the Trust.
ARTICLE VII
SHAREHOLDERS
There shall be an annual meeting of the Shareholders, to be held after
delivery of the annual report and on proper notice to the Shareholders, at such
time and place as shall be determined by resolution of the Board of Trustees.
ARTICLE VIII
LIABILITY OF SHAREHOLDERS, TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS
AND TRANSACTIONS BETWEEN THEM AND THE TRUST
Section 1. LIMITATION OF SHAREHOLDER LIABILITY. No Shareholder shall
be liable for any debt, claim, demand, judgment or obligation of any kind of,
against or with respect to the Trust by reason of his being a Shareholder, nor
shall any Shareholder be subject to any personal liability whatsoever, in tort,
contract or otherwise, to any Person in connection with the property or affairs
of the Trust.
Section 2. LIMITATION OF TRUSTEE AND OFFICER LIABILITY. To the
maximum extent that Maryland law in effect from time to time permits limitation
of the liability of trustees and officers of a real estate investment trust, no
Trustee or officer of the Trust shall be liable to the Trust or to any
Shareholder for money damages. Neither the amendment nor repeal of this
Section, nor the adoption or amendment of any other provision of this
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.
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Section 3. EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS. Neither the
Shareholders nor the Trustees, officers, employees or agents of the Trust shall
be liable under any written instrument creating an obligation of the Trust, and
all persons shall look solely to the property of the Trust for the payment of
any claim under or for the performance of that instrument. The omission of the
foregoing exculpatory language from any instrument shall not affect the validity
or enforceability of such instrument and shall not render any Shareholder,
Trustee, officer, employee or agent liable thereunder to any third party, nor
shall the Trustees or any officer, employee or agent of the Trust be liable to
anyone for such omission.
Section 4. INDEMNIFICATION. The Trust shall have the power, to the
maximum extent permitted by Maryland law, to obligate itself to indemnify, and
to pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to, each Shareholder Trustee or officer (including any person who,
while a Trustee of the Trust, is or was serving at the request of the Trust as a
director, officer, real estate investment trust, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan) from all claims and
liabilities to which such person may become subject by reason of his being or
having been a Shareholder, Trustee, officer, employee or agent.
Section 5. TRANSACTIONS BETWEEN THE TRUST AND ITS TRUSTEES, OFFICERS,
EMPLOYEES AND AGENTS. Subject to any express restrictions in this Declaration
of Trust or adopted by the Trustees in the Bylaws or by resolution, the Trust
may enter into any contract or transaction of any kind (including, without
limitation, for the purchase or sale of property or for any type of services,
including those in connection with underwriting or the offer or sale of
Securities of the Trust) with any person, including any Trustee, officer,
employee or agent of the Trust or any person affiliated with a Trustee, officer,
employee or agent of the Trust, whether or not any of them has a financial
interest in such transaction.
ARTICLE IX
AMENDMENT
Section 1. GENERAL. This Declaration of Trust may not be amended
except as provided in this Article IX.
Section 2. BY TRUSTEES. The Trustees, by a two-thirds vote, may
amend any provision of this Declaration of
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Trust from time to time to enable the Trust to qualify as a real estate
investment trust under the Code or under Title 8.
Section 3. BY SHAREHOLDERS. Except as provided in Section 2 of this
Article IX, this Declaration of Trust may be amended only by the affirmative
vote of the holders of not less than a majority of the Shares then outstanding
and entitled to vote thereon.
ARTICLE X
DURATION OF TRUST
The Trust shall continue perpetually unless terminated pursuant to any
applicable provision of Title 8.
ARTICLE XI
MISCELLANEOUS
This Declaration of Trust is executed by the Trustees and delivered in the
State of Maryland with reference to the laws thereof, and the rights of all
parties and the validity, construction and effect of every provision hereof
shall be subject to and construed according to the laws of the State of Maryland
without regard to conflicts of laws provisions thereof.
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IN WITNESS WHEREOF, this Declaration of Trust has been executed on this
21st day of August, 1997 by the undersigned Trustee, who acknowledges that this
document is his act, that to the best of his knowledge, information, and belief,
the matters and facts set forth herein are true in all material respects and
that this statement is made under the penalties for perjury.
/s/ Peter C. Brown
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