Exhibit 3.2
SENIOR HOUSING PROPERTIES TRUST
AMENDED AND RESTATED BYLAWS
As Amended and Restated September 20, 1999
As Further Amended on March 24, 2000
TABLE OF CONTENTS
Page
ARTICLE I OFFICES...................................................................................1
Section 1.1 Principal Office.............................................................1
Section 1.2 Additional Offices...........................................................1
ARTICLE II MEETINGS OF SHAREHOLDERS..................................................................1
Section 2.1 Place........................................................................1
Section 2.2 Annual Meeting...............................................................1
Section 2.3 Special Meetings.............................................................1
Section 2.4 Notice of Regular or Special Meetings........................................1
Section 2.5 Notice of Adjourned Meetings.................................................2
Section 2.6 Scope of Notice..............................................................2
Section 2.7 Organization of Shareholder Meetings.........................................2
Section 2.8 Quorum.......................................................................2
Section 2.9 Voting.......................................................................2
Section 2.10 Proxies.....................................................................3
Section 2.11 Voting Rights...............................................................3
Section 2.12 Voting of Shares by Certain Holders.........................................3
Section 2.13 Inspectors..................................................................4
Section 2.14 Reports to Shareholders.....................................................4
Section 2.15 Nominations and Proposals by Shareholders...................................4
Section 2.16 No Shareholder Actions by Written Consent...................................6
Section 2.17 Voting by Ballot............................................................6
ARTICLE III TRUSTEES..................................................................................6
Section 3.1 General Powers; Qualifications; Trustees Holding Over........................6
Section 3.2 Independent Trustees.........................................................7
Section 3.3 Managing Trustees............................................................7
Section 3.4 Number.......................................................................7
Section 3.5 Annual and Regular Meetings..................................................7
Section 3.6 Special Meetings.............................................................7
Section 3.7 Notice.......................................................................7
Section 3.8 Quorum.......................................................................7
Section 3.9 Voting.......................................................................8
Section 3.10 Telephone Meetings..........................................................8
Section 3.11 Informal Action by Trustees.................................................8
Section 3.12 Waiver of Notice............................................................8
Section 3.13 Vacancies...................................................................8
Section 3.14 Compensation; Financial Assistance..........................................9
Section 3.15 Removal of Trustees.........................................................9
Section 3.16 Loss of Deposits............................................................9
Section 3.17 Surety Bonds...............................................................10
Section 3.18 Reliance...................................................................10
Section 3.19 Interested Trustee Transactions............................................10
Section 3.20 Qualifying Shares Not Required.............................................10
Section 3.21 Certain Rights of Trustees, Officers, Employees and Agents.................10
Section 3.22 Certain Transactions.......................................................10
ARTICLE IV COMMITTEES...............................................................................10
Section 4.1 Number; Tenure and Qualifications...........................................10
Section 4.2 Powers......................................................................10
Section 4.3 Meetings....................................................................10
Section 4.4 Telephone Meetings..........................................................11
Section 4.5 Informal Action by Committees...............................................11
Section 4.6 Vacancies...................................................................11
ARTICLE V OFFICERS.................................................................................11
Section 5.1 General Provisions..........................................................11
Section 5.2 Removal and Resignation.....................................................12
Section 5.3 Vacancies...................................................................12
Section 5.4 Chief Executive Officer.....................................................12
Section 5.5 Chief Operating Officer.....................................................12
Section 5.6 Chief Financial Officer.....................................................12
Section 5.7 Chairman and Vice Chairman of the Board.....................................12
Section 5.8 President...................................................................13
Section 5.9 Vice Presidents.............................................................13
Section 5.10 Secretary..................................................................13
Section 5.11 Treasurer..................................................................13
Section 5.12 Assistant Secretaries and Assistant Treasurers.............................13
ARTICLE VI CONTRACTS, LOANS, CHECKS AND DEPOSITS....................................................14
Section 6.1 Contracts...................................................................14
Section 6.2 Checks and Drafts...........................................................14
Section 6.3 Deposits....................................................................14
ARTICLE VII SHARES...................................................................................14
Section 7.1 Certificates................................................................14
Section 7.2 Transfers...................................................................14
Section 7.3 Replacement Certificate.....................................................15
Section 7.4 Closing of Transfer Books or Fixing of Record Date..........................15
Section 7.5 Share Ledger................................................................16
Section 7.6 Fractional Shares; Issuance of Units........................................16
ARTICLE VIII FISCAL YEAR..............................................................................16
ARTICLE IX DISTRIBUTIONS............................................................................16
Section 9.1 Authorization...............................................................16
Section 9.2 Contingencies...............................................................16
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ARTICLE X SEAL.....................................................................................16
Section 10.1 Seal.......................................................................16
Section 10.2 Affixing Seal..............................................................16
ARTICLE XI INDEMNIFICATION AND ADVANCE OF EXPENSES..................................................17
ARTICLE XII WAIVER OF NOTICE.........................................................................18
ARTICLE XIII THE ADVISOR..............................................................................18
Section 13.1 Employment of Advisor......................................................18
Section 13.2 Other Activities of Advisor................................................18
ARTICLE XIV AMENDMENT OF BYLAWS......................................................................19
ARTICLE XV MISCELLANEOUS............................................................................19
Section 15.1 References to Declaration of Trust.........................................19
Section 15.2 Inspection of Bylaws.......................................................19
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SENIOR HOUSING PROPERTIES TRUST
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1.1 Principal Office. The principal office of the Trust shall
be located at such place or places as the Board of Trustees may designate.
Section 1.2 Additional Offices. The Trust may have additional offices
at such places as the Board of Trustees may from time to time determine or the
business of the Trust may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 Place. All meetings of shareholders shall be held at the
principal office of the Trust or at such other place within the United States as
is designated by the Trustees or the Chairman or President, given either before
or after the meeting and filed with the Secretary of the Trust.
Section 2.2 Annual Meeting. An annual meeting of the shareholders for
the election of Trustees and the transaction of any business within the powers
of the Trust shall be held on the second Thursday in May or such other date as
the Board of Trustees may set, after delivery to the shareholders of the annual
report, referred to in Section 2.14, at a convenient location and on proper
notice, and at the time set by the Trustees, beginning with the year 2000.
Failure to hold an annual meeting does not invalidate the Trust's existence or
affect any otherwise valid acts of the Trust.
Section 2.3 Special Meetings. Special meetings of shareholders may be
called only by a majority of the Trustees. If there shall be no Trustees, the
officers of the Trust shall promptly call a special meeting of the shareholders
entitled to vote for the election of successor Trustees. No business shall be
transacted by the shareholders at a special meeting other than business that is
either (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Trustees (or any duly authorized committee
thereof) or (ii) otherwise properly brought before the shareholders by or at the
direction of the Trustees.
Section 2.4 Notice of Regular or Special Meetings. Written notice
specifying the place, day and hour of any regular or special meeting, the
purposes of the meeting, and all other matters required by law shall be given to
each shareholder of record entitled to vote, either personally or by sending a
copy thereof by mail, telegraph or telecopier, charges prepaid, to his address
appearing on the books of the Trust or theretofore given by him to the Trust for
the purpose of notice or, if no address appears or has been given, addressed to
the place where the principal office of the Trust is situated. If mailed, such
notice shall be deemed to be given when deposited in the U.S. mail addressed to
the shareholder at his post office address as it appears on the records of the
Trust, with
postage thereon prepaid. It shall be the duty of the Secretary to give notice of
each Annual Meeting of the Shareholders at least fifteen (15) days and not more
than sixty (60) days before the date on which it is to be held. Whenever an
officer has been duly requested by the Trustees to call a special meeting of
shareholders, it shall be his duty to fix the date and hour thereof, which date
shall be not less than twenty (20) days and not more than sixty (60) days after
the receipt of such request, and to give notice of such special meeting within
ten (10) days after receipt of such request.
Section 2.5 Notice of Adjourned Meetings. It shall not be necessary to
give notice of the time and place of any adjourned meeting or of the business to
be transacted thereat other than by announcement at the meeting at which such
adjournment is taken, except that when a meeting is adjourned for more than 120
days after the original record date, notice of the adjourned meeting shall be
given as in the case of an original meeting.
Section 2.6 Scope of Notice. No business shall be transacted at an
annual or special meeting of shareholders except as specifically designated in
the notice and otherwise properly brought before the shareholders by or at the
direction of the Trustees.
Section 2.7 Organization of Shareholder Meetings. At every meeting of
the shareholders, the chairman of the board, if there be one, shall conduct the
meeting or, in the case of vacancy in office or absence of the chairman of the
board, one of the following officers present shall conduct the meeting in the
order stated: the vice chairman of the board, if there be one, the president,
the vice presidents in their order of rank and seniority, or a chairman chosen
by the shareholders entitled to cast a majority of the votes which all
shareholders present in person or by proxy are entitled to cast. The secretary,
or, in his absence, an assistant secretary, or in the absence of both the
secretary and assistant secretaries, a person appointed by the chairman shall
act as secretary for all shareholder meetings.
Section 2.8 Quorum. At any meeting of shareholders, the presence in
person or by proxy of shareholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the Declaration of Trust
for the vote necessary for the adoption of any measure. If, however, such quorum
shall not be present at any meeting of the shareholders, the shareholders
entitled to vote at such meeting, present in person or by proxy, shall have the
power to adjourn the meeting from time to time to a date not more than 120 days
after the original record date. At such adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2.9 Voting. A majority of all the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
elect a Trustee. Each share may be voted for as many individuals as there are
Trustees to be elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of shareholders duly called and at
which a quorum is present shall be sufficient to approve any other matter which
may properly come before the meeting, unless more than a majority of the votes
cast is required herein or by statute or by the Declaration of Trust.
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Section 2.10 Proxies. A shareholder may cast the votes entitled to be
cast by the shares owned of record by him either in person or by proxy executed
by the shareholder or by his duly authorized agent in any manner permitted by
law. Such proxy shall be filed with such officer of the Trust as the Trustees
shall have designated for such purpose for verification prior to such meeting.
Any proxy relating to the Trust's shares of beneficial interest shall be valid
until the expiration date therein or, if no expiration is so indicated, for such
period as is permitted pursuant to Maryland law. At a meeting of shareholders,
all questions concerning the qualification of voters, the validity of proxies,
and the acceptance or rejection of votes, shall be decided by the Secretary of
the meeting unless inspectors of election are appointed pursuant to Section 2.13
in which event such inspectors shall pass upon all questions and shall have all
other duties specified in said section.
Section 2.11 Voting Rights. The Board of Trustees shall fix the date
for determination of shareholders entitled to vote at a meeting of shareholders.
If no date is fixed for the determination of the shareholders entitled to vote
at any meeting of shareholders, only persons in whose names shares entitled to
vote stand on the share records of the Trust at the opening of business on the
day of any meeting of shareholders shall be entitled to vote at such meeting.
Section 2.12 Voting of Shares by Certain Holders. Shares of the Trust
registered in the name of a corporation, partnership, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such shares pursuant to a bylaw or a resolution of the
governing board of such corporation or other entity or agreement of the partners
of the partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such shares. Any trustee or other
fiduciary may vote shares registered in his name as such fiduciary, either in
person or by proxy.
Shares of the Trust directly or indirectly owned by it shall not be
voted at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held
by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
The Trustees may adopt by resolution a procedure by which a shareholder
may certify in writing to the Trust that any shares registered in the name of
the shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who may
make the certification, the purpose for which the certification may be made, the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the share transfer
books, the time after the record date or closing of the share transfer books
within which the certification must be received by the Trust; and any other
provisions with respect to the procedure which the Trustees consider necessary
or desirable. On receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the
certification, the shareholder of record of the specified shares in place of the
shareholder who makes the certification.
Notwithstanding any other provision contained herein or in the
Declaration of Trust or these Bylaws, Title 3, Subtitle 7 of the Corporations
and Associations Article of the Annotated Code of Maryland (or any successor
statute) shall not apply to any acquisition by any person of shares of
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beneficial interest of the Trust. This section may be repealed, in whole or in
part, at any time, whether before or after an acquisition of control shares and,
upon such repeal, may, to the extent provided by any successor bylaw, apply to
any prior or subsequent control share acquisition.
Section 2.13 Inspectors. At any meeting of shareholders, the chairman
of the meeting may appoint one or more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares represented at
the meeting based upon their determination of the validity and effect of
proxies, count all votes, report the results and perform such other acts as are
proper to conduct the election and voting at the meeting.
Each report of an inspector shall be in writing and signed by him or by
a majority of them if there is more than one inspector acting at such meeting.
If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
Section 2.14 Reports to Shareholders. The Trustees shall submit to the
shareholders at or before the annual meeting of shareholders a report of the
business and operations of the Trust during such fiscal year containing
financial statements of the Trust, accompanied by the report of an independent
certified public accountant, and such further information as the Trustees may
determine is required pursuant to any law or regulation to which the Trust is
subject. Within the earlier of twenty (20) days after the annual meeting of
shareholders or 120 days after the end of the fiscal year of the Trust, the
Trustees shall place the annual report on file at the principal office of the
Trust and with any governmental agencies as may be required by law and as the
Trustees may deem appropriate.
Section 2.15 Nominations and Proposals by Shareholders.
Section 2.15.1 Annual Meetings of Shareholders. (a)
Nominations of persons for election to the Board of Trustees and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (i) pursuant to the Trust's notice of meeting, (ii) by or at the
direction of the Trustees or (iii) by any shareholder of the Trust who was a
shareholder of record both at the time of giving of notice provided for in this
Section 2.15.1 and at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 2.15.1.
(b) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to Section 2.15.1(a)(iii),
the shareholder must have given timely notice thereof in writing to the
secretary of the Trust at the principal executive offices of the Trust and such
other business must otherwise be a proper matter for action by shareholders as
determined by the Board of Trustees. To be timely, a shareholder's notice shall
be delivered to the secretary at the principal executive offices of the Trust
not later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than thirty (30) days or delayed by more than
sixty (60) days from such anniversary date or if the Trust has not previously
held an annual meeting, notice by the shareholder
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to be timely must be so delivered not earlier than the close of business on the
120th day prior to such annual meeting and not later than the close of business
on the later of: (i) the 90th day prior to such annual meeting, or (ii) the 10th
day following the day on which public announcement of the date of such meeting
is first made by the Trust. In no event shall the public announcement of a
postponement or adjournment of an annual meeting to a later date or time
commence a new time period for the giving of a shareholder's notice as described
above. A shareholder's notice shall set forth (i) as to each person whom the
shareholder proposes to nominate for election or reelection as a Trustee, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of Trustees in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Trustee if elected; (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x) the name
and address of such shareholder, as they appear on the Trust's books, and of
such beneficial owner and (y) the number of each class of shares of the Trust
which are owned beneficially and of record by such shareholder and such
beneficial owner.
(c) Notwithstanding anything in the second sentence of Section
2.15.1(b) to the contrary, in the event that the number of Trustees to be
elected to the Board of Trustees is increased and there is no public
announcement by the Trust naming all of the nominees for Trustee or specifying
the size of the increased Board of Trustees at least one hundred (100) days
prior to the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this Section 2.15.1 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the principal executive
offices of the Trust not later than the close of business on the 10th day
following the day on which such public announcement is first made by the Trust.
Section 2.15.2 Special Meetings of Shareholders. Only such
business shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting pursuant to the Trust's notice of meeting.
Nominations of persons for election to the Board of Trustees may be made at a
special meeting of shareholders at which Trustees are to be elected (i) pursuant
to the Trust's notice of meeting, (ii) by or at the direction of the Board of
Trustees or (iii), provided that the Board of Trustees has determined that
Trustees shall be elected at such special meeting, by any shareholder of the
Trust who was a shareholder of record both at the time of giving of notice
provided for in this Section 2.15.2 and at the time of the special meeting, who
is entitled to vote at the meeting and who complied with the notice procedures
set forth in this Section 2.15.2. In the event the Trust calls a special meeting
of shareholders for the purpose of electing one or more Trustees to the Board of
Trustees, any such shareholder may nominate a person or persons (as the case may
be) for election to such position as specified in the Trust's notice of meeting,
if the shareholder's notice containing the information required by Section
2.15.1(b) shall be delivered to the secretary at the principal executive offices
of the Trust not earlier than the close of business on the 120th day prior to
such special meeting and not later than the close of business on the later of:
(i) the 90th day prior to such special meeting, or (ii) the 10th day following
the day on which public
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announcement is first made of the date of the special meeting and of the
nominees proposed by the Trustees to be elected at such meeting. In no event
shall the public announcement of a postponement or adjournment of a special
meeting to a later date or time commence a new time period for the giving of a
shareholder's notice as described above.
Section 2.15.3 General. (1) Only such persons who are
nominated in accordance with the procedures set forth in this Section 2.15 shall
be eligible to serve as Trustees and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 2.15. The chairman of
the meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures set forth in this Section
2.15 and, if any proposed nomination or business is not in compliance with this
Section 2.15, to declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 2.15, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a document publicly filed by
the Trust with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.15, a shareholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.15. Nothing in this Section
2.15 shall be deemed to affect any right of a shareholder to request inclusion
of a proposal in, nor the right of the Trust to omit a proposal from, the
Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.16 No Shareholder Actions by Written Consent. Shareholders
shall not be authorized or permitted to take any action required or permitted to
be taken at a meeting of shareholders by written consent, and may take such
action only at an annual or special meeting as provided by Maryland law and the
Declaration of Trust and hereby.
Section 2.17 Voting by Ballot. Voting on any question or in any
election may be viva voce unless the chairman of the meeting officer shall order
or any shareholder shall demand that voting be by ballot.
ARTICLE III
TRUSTEES
Section 3.1 General Powers; Qualifications; Trustees Holding Over. The
business and affairs of the Trust shall be managed under the direction of its
Board of Trustees. A Trustee shall be an individual at least twenty-one (21)
years of age who is not under legal disability. In case of failure to elect
Trustees at an annual meeting of the shareholders, the Trustees holding over
shall continue to direct the management of the business and affairs of the Trust
until their successors are elected and qualify.
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Section 3.2 Independent Trustees. A majority of the Trustees holding
office shall at all times be Independent Trustees (as defined below); provided,
however, that upon a failure to comply with this requirement as a result of the
creation of a temporary 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. An Independent Trustee is one who is not an employee of
the Trust's investment advisor (as defined in Article XIII), and who is not
involved in the Trust's day-to-day activities.
Section 3.3 Managing Trustees. Any Trustee who is not an Independent
Trustee may be designated a Managing Trustee by the Board of Trustees.
Section 3.4 Number. At any regular meeting or at any special meeting
called for that purpose, a majority of the entire Board of Trustees may
establish, increase or decrease the number of Trustees.
Section 3.5 Annual and Regular Meetings. An annual meeting of the
Trustees shall be held immediately after and at the same place as the annual
meeting of shareholders, no notice other than this Bylaw being necessary. The
time and place of the annual meeting of the Trustees may be changed by the Board
of Trustees. The Trustees may provide, by resolution, the time and place, either
within or without the State of Maryland, for the holding of regular meetings of
the Trustees without other notice than such resolution.
Section 3.6 Special Meetings. Special meetings of the Trustees may be
called at any time by the chairman of the board, any Managing Trustee or the
president and shall be called by request of any two (2) Trustees then in office.
The person or persons authorized to call special meetings of the Trustees may
fix any place, either within or without the State of Maryland, as the place for
holding any special meeting of the Trustees called by them.
Section 3.7 Notice. Notice of any special meeting shall be given by
written notice delivered personally, telegraphed, facsimile-transmitted or
mailed to each Trustee at his business or residence address. Personally
delivered or telegraphed notices shall be given at least twenty-four (24) hours
prior to the meeting. Notice by mail shall be deposited in the U.S. mail in the
place in which the principal office of the Trust is located at least seventy-two
(72) hours prior to the meeting. Telephone or facsimile-transmission notice
shall be given at least forty-eight (48) hours prior to the meeting. If mailed,
such notice shall be deemed to be given when deposited in the U.S. mail properly
addressed, with postage thereon prepaid. If given by telegram, such notice shall
be deemed to be given when the telegram is delivered to the telegraph company.
Telephone notice shall be deemed given when the Trustee is personally given such
notice in a telephone call to which he is a party. Facsimile-transmission notice
shall be deemed given upon completion of the transmission of the message to the
number given to the Trust by the Trustee and receipt of a completed answer- back
indicating receipt. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the Trustees need be stated in the
notice, unless specifically required by statute or these Bylaws.
Section 3.8 Quorum. A majority of the Trustees shall constitute a
quorum for transaction of business at any meeting of the Trustees, provided
that, if less than a majority of such Trustees are
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present at a meeting, a majority of the Trustees present may adjourn the meeting
from time to time without further notice, and provided further that if, pursuant
to the Declaration of Trust or these Bylaws, the vote of a majority of a
particular group of Trustees is required for action, a quorum must also include
a majority of such group.
The Trustees present at a meeting which has been duly called and
convened may continue to transact business until adjournment, notwithstanding
the withdrawal of enough Trustees to leave less than a quorum.
Section 3.9 Voting. The action of the majority of the Trustees present
at a meeting at which a quorum is present shall be the action of the Trustees,
unless the concurrence of a greater proportion is required for such action by
specific provision of an applicable statute, the Declaration of Trust or these
Bylaws.
Section 3.10 Telephone Meetings. Trustees may participate in a meeting
by means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting. Such meeting shall be deemed to have been held at a place
designated by the Trustees at the meeting.
Section 3.11 Informal Action by Trustees. Unless specifically otherwise
provided in the Declaration of Trust, any action required or permitted to be
taken at any meeting of the Trustees may be taken without a meeting, if a
majority of the Trustees shall individually or collectively consent in writing
to such action. Such written consent or consents shall be filed with the records
of the Trust and shall have the same force and effect as the affirmative vote of
such Trustees at a duly held meeting of the Trustees at which a quorum was
present.
Section 3.12 Waiver of Notice. The actions taken at any meeting of the
Trustees, however called and noticed or wherever held, shall be as valid as
though taken at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the Trustees not
present signs a written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be lodged with the Trust records or made a part of the minutes
of the meeting.
Section 3.13 Vacancies; Groups. If for any reason any or all the
Trustees cease to be Trustees, such event shall not terminate the Trust or
affect these Bylaws or the powers of the remaining Trustees hereunder (even if
fewer than three (3) Trustees remain). Any vacancy shall be filled, at any
regular meeting or at any special meeting called for that purpose, by a majority
of the remaining Trustees, except that a vacancy resulting from an increase in
the number of Trustees shall be filled by a majority of the entire Board of
Trustees. Any individual so elected as Trustee shall hold office for the
unexpired term of the Trustee he is replacing.
On the first date on which the Trust shall have more than one
shareholder of record (the "Distribution Date"), the number of Trustees in Group
I shall be one (1), the number of Trustees in Group II shall be two (2), and the
number of Trustees in Group III shall be two (2) (each of Group I, Group II and
Group III being referred to herein as a "Group"). On or prior to the
Distribution
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Date, a majority of the entire Board of Trustees shall designate the Group of
which each Trustee in office on the Distribution Date shall initially be a
member, subject to the limitations contained in Section 5.2.2 of the Declaration
of Trust. The term of a Trustee elected to fill any vacancy on the Board of
Trustees on the Distribution Date or at any time thereafter shall be set by a
majority of the Board of Trustees when the position is created or, in the case
of vacancies existing on the Distribution Date, when such position is filled, by
designating the new position as Group I, Group II or Group III, subject to the
limitations contained in Section 5.2.2 of the Declaration of Trust. In the event
a vacancy on the Board of Trustees is filled by vote of shareholders pursuant to
Article II and the Declaration of Trust rather than by the Board of Trustees
pursuant to this Section 3.13, the term of a Trustee elected to fill such
vacancy shall be set by a majority of the Board of Trustees prior to the date on
which notice of the annual meeting of shareholders at which such vote is to
occur or the special meeting of shareholders called for the purpose of such
vote, as applicable, is given, by designating the new position as Group I, Group
II or Group III, subject to the limitations contained in Section 5.2.2 of the
Declaration of Trust. In the event the Trustees reduce the size of the Board of
Trustees on or after the Distribution Date, the majority of the entire Board of
Trustees shall reduce the size of one or more Group or Groups by the aggregate
reduction in the number of the Trustees, subject to the limitations contained in
Section 5.2.2 of the Declaration of Trust. On or prior to the Distribution Date,
a majority of the entire Board of Trustees shall designate the Group of which
each Trustee in office on the Distribution Date shall initially be a member.
Section 3.14 Compensation; Financial Assistance.
Section 3.14.1 Compensation. The Trustees shall be entitled to
receive such reasonable compensation for their services as Trustees as the
Trustees may determine from time to time. Trustees may be reimbursed for
expenses of attendance, if any, at each annual, regular or special meeting of
the Trustees or of any committee thereof; and for their expenses, if any, in
connection with each property visit and any other service or activity performed
or engaged in as Trustee. The Trustees shall be entitled to receive remuneration
for services rendered to the Trust in any other capacity, and such services may
include, without limitation, services as an officer of the Trust, services as an
employee of the Advisor (as defined in Article XIII), 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.
Section 3.14.2 Financial Assistance to Trustees. The Trust may
lend money to, guarantee an obligation of or otherwise assist a Trustee or a
trustee of its direct or indirect subsidiary. The loan, guarantee or other
assistance may be with or without interest, unsecured, or secured in any manner
that the Board of Trustees approves, including a pledge of shares.
Section 3.15 Removal of Trustees. The shareholders may, at any time,
remove any Trustee in the manner provided in the Declaration of Trust.
Section 3.16 Loss of Deposits. No Trustee shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or shares have been
deposited.
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Section 3.17 Surety Bonds. Unless specifically required by law, no
Trustee shall be obligated to give any bond or surety or other security for the
performance of any of his duties.
Section 3.18 Reliance. Each Trustee, officer, employee and agent of the
Trust shall, in the performance of his duties with respect to the Trust, be
fully justified and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records of the Trust,
upon an opinion of counsel or upon reports made to the Trust by any of its
officers or employees or by the Advisor (as defined in Article XIII),
accountants, appraisers or other experts or consultants selected by the Trustees
or officers of the Trust, regardless of whether such counsel or expert may also
be a Trustee.
Section 3.19 Interested Trustee Transactions. Section 2-419 of the
Maryland General Corporation Law (the "MGCL") shall be available for and apply
to any contract or other transaction between the Trust and any of its Trustees
or between the Trust and any other trust, corporation, firm or other entity in
which any of its Trustees is a trustee or director or has a material financial
interest.
Section 3.20 Qualifying Shares Not Required. Trustees need not be
shareholders of the Trust.
Section 3.21 Certain Rights of Trustees, Officers, Employees and
Agents. The Trustees shall have no responsibility to devote their full time to
the affairs of the Trust. Any Trustee or officer, employee or agent of the
Trust, in his personal capacity or in a capacity as an affiliate, employee, or
agent of any other person, or otherwise, may have business interests and engage
in business activities similar or in addition to those of or relating to the
Trust.
Section 3.22 Certain Transactions. Notwithstanding any other provision
in the Bylaws, no determination shall be made by the Trustees nor shall any
transaction be entered into by the Trust which would cause any shares or other
beneficial interest in the Trust not to constitute "transferable shares" or
"transferable certificates of beneficial interest" under Section 856(a)(2) of
the Internal Revenue Code of 1986, as amended (the "Code") or which would cause
any distribution to constitute a preferential dividend as described in Section
562(c) of the Code.
ARTICLE IV
COMMITTEES
Section 4.1 Number; Tenure and Qualifications. The Board of Trustees
may appoint from among its members an audit committee and other committees,
composed of one (1) or more Trustees, to serve at the pleasure of the Board of
Trustees.
Section 4.2 Powers. The Trustees may delegate to committees appointed
under Section 4.1 any of the powers of the Trustees, except as prohibited by
law.
Section 4.3 Meetings. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another Trustee
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to act in the place of such absent member. Notice of committee meetings shall be
given in the same manner as notice for special meetings of the Board of
Trustees.
One-third, but not less than one, of the members of any committee shall
be present in person at any meeting of such committee in order to constitute a
quorum for the transaction of business at such meeting, and the act of a
majority present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee. The Board of Trustees may designate
a chairman of any committee, and such chairman or any two members of any
committee may fix the time and place of its meetings unless the Board shall
otherwise provide. In the absence or disqualification of any member of any such
committee, the members thereof present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
Trustee to act at the meeting in the place of such absent or disqualified
members.
Each committee shall keep minutes of its proceedings and shall report
the same to the Board of Trustees at the next succeeding meeting, and any action
by the committee shall be subject to revision and alteration by the Board of
Trustees, provided that no rights of third persons shall be affected by any such
revision or alteration.
Section 4.4 Telephone Meetings. Members of a committee of the Trustees
may participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 4.5 Informal Action by Committees. Any action required or
permitted to be taken at any meeting of a committee of the Trustees may be taken
without a meeting, if a consent in writing to such action is signed by each
member of the committee and such written consent is filed with the minutes of
proceedings of such committee.
Section 4.6 Vacancies. Subject to the provisions hereof, the Board of
Trustees shall have the power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate members to replace any
absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 5.1 General Provisions. The officers of the Trust shall include
a president, a secretary and a treasurer and may include a chairman of the
board, a vice chairman of the board, a chief executive officer, a chief
operating officer, a chief financial officer, one or more vice presidents, one
or more assistant secretaries and one or more assistant treasurers. In addition,
the Trustees may from time to time appoint such other officers with such powers
and duties as they shall deem necessary or desirable. The officers of the Trust
shall be elected annually by the Trustees at the first meeting of the Trustees
held after each annual meeting of shareholders. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as may be convenient. Each officer shall hold office until his
successor is elected and qualifies or until his death, resignation or removal in
the manner hereinafter provided. Any two or more offices except
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president and vice president may be held by the same person. In their
discretion, the Trustees may leave unfilled any office except that of president
and secretary. Election of an officer or agent shall not of itself create
contract rights between the Trust and such officer or agent.
Section 5.2 Removal and Resignation. Any officer or agent of the Trust
may be removed by the Trustees if in their judgment the best interests of the
Trust would be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Any officer of the Trust
may resign at any time by giving written notice of his resignation to the
Trustees, the chairman of the board, the president or the secretary. Any
resignation shall take effect at any time subsequent to the time specified
therein or, if the time when it shall become effective is not specified therein,
immediately upon its receipt. The acceptance of a resignation shall not be
necessary to make it effective unless otherwise stated in the resignation. Such
resignation shall be without prejudice to the contract rights, if any, of the
Trust.
Section 5.3 Vacancies. A vacancy in any office may be filled by the
Trustees for the balance of the term.
Section 5.4 Chief Executive Officer. The Trustees may designate a chief
executive officer from among the elected officers. The chief executive officer
shall have responsibility for implementation of the policies of the Trust, as
determined by the Trustees, and for the administration of the business affairs
of the Trust. In the absence of both the chairman and vice chairman of the
board, the chief executive officer shall preside over the meetings of the
Trustees at which he shall be present. The Managing Trustees, or either of them,
may be designated to function as the chief executive officer of the Trust.
Section 5.5 Chief Operating Officer. The Trustees may designate a chief
operating officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 5.6 Chief Financial Officer. The Trustees may designate a chief
financial officer from among the elected officers. Said officer will have the
responsibilities and duties as set forth by the Trustees or the chief executive
officer.
Section 5.7 Chairman and Vice Chairman of the Board. The chairman of
the board shall preside over the meetings of the Trustees and of the
shareholders at which he shall be present and shall in general oversee all of
the business and affairs of the Trust. In the absence of the chairman of the
board, the vice chairman of the board shall preside at such meetings at which he
shall be present. The chairman and the vice chairman of the board may execute
any deed, mortgage, bond, contract or other instrument, except in cases where
the execution thereof shall be expressly delegated by the Trustees or by these
Bylaws to some other officer or agent of the Trust or shall be required by law
to be otherwise executed. The chairman of the board and the vice chairman of the
board shall perform such other duties as may be assigned to him or them by the
Trustees. In the absence of a chairman and vice chairman or none is appointed,
the Managing Trustees, or either of them, shall act as chairman.
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Section 5.8 President. The president shall preside over the meetings of
the shareholders at which he shall be present. The president may execute any
deed, mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Trustees or by these
Bylaws to some other officer or agent of the Trust or shall be required by law
to be otherwise executed; and in general shall perform all duties incident to
the office of president and such other duties as may be prescribed by the
Trustees from time to time.
Section 5.9 Vice Presidents. In the absence of the president or in the
event of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at the
time of their election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be
assigned to him by the president or by the Trustees. The Trustees may designate
one or more vice presidents as executive vice president, senior vice president
or as vice president for particular areas of responsibility.
Section 5.10 Secretary. The secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Trustees and committees of the Trustees in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the trust records and of the seal of the Trust; (d) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (e) maintain at the principal office of
the Trust a share register, showing the ownership and transfers of ownership of
all shares of the Trust, unless a transfer agent is employed to maintain and
does maintain such a share register; and (f) in general perform such other
duties as from time to time may be assigned to him by the chief executive
officer, the president or by the Trustees.
Section 5.11 Treasurer. The treasurer shall have the custody of the
funds and securities of the Trust and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Trust and shall deposit all
moneys and other valuable effects in the name and to the credit of the Trust in
such depositories as may be designated by the Trustees.
He shall disburse the funds of the Trust as may be ordered by the
Trustees, taking proper vouchers for such disbursements, and shall render to the
president and Trustees, at the regular meetings of the Trustees or whenever they
may require it, an account of all his transactions as treasurer and of the
financial condition of the Trust.
Section 5.12 Assistant Secretaries and Assistant Treasurers. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the secretary or treasurer, respectively,
or by the president or the Trustees. The assistant treasurers shall, if required
by the Trustees, give bonds for the faithful performance of their duties in such
sums and with such surety or sureties as shall be satisfactory to the Trustees.
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ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1 Contracts. The Trustees may authorize any officer or agent
to enter into any contract or to execute and deliver any instrument in the name
of and on behalf of the Trust and such authority may be general or confined to
specific instances. Any agreement, deed, mortgage, lease or other document
executed by one or more of the Trustees or by an authorized person shall be
valid and binding upon the Trustees and upon the Trust when authorized or
ratified by action of the Trustees.
Section 6.2 Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Trust shall be signed by such officer or agent of the Trust in such
manner as shall from time to time be determined by the Treasurer or by the
Trustees.
Section 6.3 Deposits. All funds of the Trust not otherwise employed
shall be deposited from time to time to the credit of the Trust in such banks,
trust companies or other depositories as the Treasurer or the Trustees may
designate.
ARTICLE VII
SHARES
Section 7.1 Certificates. Ownership of shares shall be evidenced by
certificates. Each shareholder shall be entitled to a certificate or
certificates, in such form as the Trustees shall from time to time approve,
which shall represent and certify the number of shares of each class of
beneficial interests held by him in the Trust. Unless otherwise determined by
the Trustees, such certificates shall be signed by the chief executive officer,
the president or a vice president and countersigned by the secretary or an
assistant secretary or the treasurer or an assistant treasurer and may be sealed
with the seal, if any, of the Trust. The signatures may be either manual or
facsimile. Certificates shall be consecutively numbered; and if the Trust shall
from time to time issue several classes of shares, each class may have its own
number series. A certificate is valid and may be issued whether or not an
officer who signed it is still an officer when it is issued. There shall be
filed with each transfer agent a copy of the form of certificate as approved by
the Trustees, certified by the chairman, president or secretary, and such form
shall continue to be used unless and until the Trustees approve some other form.
Each certificate representing shares which are restricted as to their
transferability or voting powers, which are preferred or limited as to their
dividends or as to their allocable portion of the assets upon liquidation or
which are redeemable at the option of the Trust, shall have a statement of such
restriction, limitation, preference or redemption provision, or a summary
thereof, plainly stated on the certificate. In lieu of such statement or
summary, the Trust may set forth upon the face or back of the certificate a
statement that the Trust will furnish to any shareholder, upon request and
without charge, a full statement of such information.
Section 7.2 Transfers. Certificates shall be treated as negotiable and
title thereto and to the shares they represent shall be transferred by delivery
thereof to the same extent as those of a
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Maryland stock corporation. Upon surrender to the Trust or the transfer agent of
the Trust of a share certificate duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, the Trust shall issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
The Trust shall be entitled to treat the holder of record of any share
or shares as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of beneficial
interest of the Trust will be subject in all respects to the Declaration of
Trust and all of the terms and conditions contained therein.
Section 7.3 Replacement Certificate. Any officer designated by the
Trustees may direct a new certificate to be issued in place of any certificate
previously issued by the Trust alleged to have been lost, stolen or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost, stolen or destroyed. When authorizing the issuance of a
new certificate, an officer designated by the Trustees may, in his discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or the owner's legal representative to
advertise the same in such manner as he shall require and/or to give bond, with
sufficient surety, to the Trust to indemnify it against any loss or claim which
may arise as a result of the issuance of a new certificate.
Section 7.4 Closing of Transfer Books or Fixing of Record Date. The
Trustees may set, in advance, a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
determining shareholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
shareholders for any other proper purpose.
In lieu of fixing a record date, the Trustees may provide that the
share transfer books shall be closed for a stated period but not longer than
twenty (20) days. If the share transfer books are closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten (10) days before the
date of such meeting.
If no record date is fixed and the share transfer books are not closed
for the determination of shareholders, (a) the record date for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of shareholders entitled
to receive payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the Trustees,
declaring the dividend or allotment of rights, is adopted.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof.
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Section 7.5 Share Ledger. The Trust shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, a share
ledger containing the name and address of each shareholder and the number of
shares of each class held by such shareholder.
Section 7.6 Fractional Shares; Issuance of Units. The Trustees may
issue fractional shares or provide for the issuance of scrip, all on such terms
and under such conditions as they may determine. Notwithstanding any other
provision of the Declaration of Trust or these Bylaws, the Trustees may issue
units consisting of different securities of the Trust. Any security issued in a
unit shall have the same characteristics as any identical securities issued by
the Trust, except that the Trustees may provide that for a specified period
securities of the Trust issued in such unit may be transferred on the books of
the Trust only in such unit.
ARTICLE VIII
FISCAL YEAR
The Fiscal year of the Trust shall be the calendar year.
ARTICLE IX
DISTRIBUTIONS
Section 9.1 Authorization. Dividends and other distributions upon the
shares of beneficial interest of the Trust may be authorized and declared by the
Trustees, subject to the provisions of law and the Declaration of Trust.
Dividends and other distributions may be paid in cash, property or shares of the
Trust, subject to the provisions of law and the Declaration of Trust.
Section 9.2 Contingencies. Before payment of any dividends or other
distributions, there may be set aside out of any funds of the Trust available
for dividends or other distributions such sum or sums as the Trustees may from
time to time, in their absolute discretion, think proper as a reserve fund for
contingencies or for any other purpose as the Trustees shall determine to be in
the best interest of the Trust, and the Trustees may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE X
SEAL
Section 10.1 Seal. The Trustees may authorize the adoption of a seal by
the Trust. The seal shall have inscribed thereon the name of the Trust and the
year of its formation. The Trustees may authorize one or more duplicate seals
and provide for the custody thereof.
Section 10.2 Affixing Seal. Whenever the Trust is permitted or required
to affix its seal to a document, it shall be sufficient to meet the requirements
of any law, rule or regulation relating to a seal to place the word "(SEAL)"
adjacent to the signature of the person authorized to execute the document on
behalf of the Trust.
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ARTICLE XI
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to
time, the Trust shall indemnify (a) any Trustee, officer or shareholder or any
former Trustee, officer or shareholder (including among the foregoing, for all
purposes of this Article XI and without limitation, any individual who, while a
Trustee, officer or shareholder and at the express request of the Trust, serves
or has served another real estate investment trust, corporation, partnership,
joint venture, trust, employee benefit plan or any other enterprise as a
director, officer, shareholder, partner or trustee of such real estate
investment trust, corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) who has been successful, on the merits or
otherwise, in the defense of a proceeding to which he was made a party by reason
of service in such capacity, against reasonable expenses incurred by him in
connection with the proceeding, (b) any Trustee or officer or any former Trustee
or officer against any claim or liability to which he may become liable or
subject by reason of such status or actions in such capacity and (c) each
shareholder or former shareholder against any claim or liability to which he may
become subject by reason of such status. In addition, the Trust shall, without
requiring a preliminary determination of the ultimate entitlement to
indemnification, pay or reimburse, in advance of final disposition of a
proceeding, reasonable expenses incurred by a Trustee, officer or shareholder or
former Trustee, officer or shareholder made a party to a proceeding by reason
such status, provided that, in the case of a Trustee or officer, the Trust shall
have received (i) a written affirmation by the Trustee or officer of his good
faith belief that he has met the applicable standard of conduct necessary for
indemnification by the Trust as authorized by Maryland law and (ii) a written
undertaking by him or on his behalf to repay the amount paid or reimbursed by
the Trust if it shall ultimately be determined that the applicable standard of
conduct was not met. The Trust may, with the approval of its Trustees, provide
such indemnification or payment or reimbursement of expenses to any Trustee,
officer or shareholder or any former Trustee, officer or shareholder who served
a predecessor of the Trust and to any employee or agent of the Trust or a
predecessor of the Trust. Neither the amendment nor repeal of this Article, nor
the adoption or amendment of any other provision of the Declaration of Trust or
these Bylaws inconsistent with this Article, shall apply to or affect in any
respect the applicability of this Article with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
Any indemnification or payment or reimbursement of the expenses
permitted by these Bylaws shall be furnished in accordance with the procedures
provided for indemnification or payment or reimbursement of expenses, as the
case may be, under Section 2-418 of the MGCL for directors of Maryland
corporations. The Trust may provide to Trustees, officers and shareholders such
other and further indemnification or payment or reimbursement of expenses, as
the case may be, to the fullest extent permitted by the MGCL, as in effect from
time to time, for directors of Maryland corporations.
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ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration
of Trust or Bylaws or pursuant to applicable law, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by
statute. The attendance of any person at any meeting shall constitute a waiver
of notice of such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE XIII
THE ADVISOR
Section 13.1 Employment of Advisor. The Trustees are not and shall not
be required personally to conduct the business of the Trust, and the Trustees
shall have the power to appoint, employ or contract with any person (including
one or more of themselves or any corporation, partnership, or trust in which one
or more of them may be Trustees, officers, stockholders, partners or trustees)
as the Trustees may deem necessary or proper for the transaction of the business
of the Trust. The Trustees may therefore employ or contract with such person
(herein referred to as the "Advisor") and may grant or delegate such authority
to the Advisor as the Trustees may in their sole discretion deem necessary or
desirable without regard to whether such authority is normally granted or
delegated by boards of trustees or boards of directors of business corporations.
The Advisor shall be required to use its best efforts to supervise the operation
of the Trust in a manner consistent with the investment policies and objectives
of the Trust as established from time to time by the Trustees.
The Trustees shall have the power to determine the terms and
compensation of the Advisor or any other person whom it may cause the Trust to
employ or with whom it may cause the Trust to contract for advisory services.
The Trustees may exercise broad discretion in allowing the Advisor to administer
and regulate the operations of the Trust, to act as agent for the Trust, to
execute documents on behalf of the Trustees and to make executive decisions
which conform to general policies and general principles previously established
by the Trustees.
Section 13.2 Other Activities of Advisor. The Advisor shall not be
required to administer the Trust as its sole and exclusive function and may have
other business interests and may engage in other activities similar or in
addition to those relating to the Trust, including the rendering of advice or
services of any kind to other investors or any other persons (including other
real estate investment trusts) and the management of other investments. The
Trustees may request the Advisor to engage in certain other activities which
complement the Trust's investments, and the Advisor may receive compensation or
commissions therefor from the Trust or other persons.
Neither the Advisor nor any affiliate of the Advisor shall be obligated
to present any particular investment opportunities to the Trust, even if such
opportunities are of a character such
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that, if presented to the Trust, they could be taken by the Trust, and, subject
to the foregoing, each of them shall be protected in taking for its own account
or recommending to others any such particular investment opportunity.
ARTICLE XIV
AMENDMENT OF BYLAWS
Except for any change for which the Declaration or these Bylaws require
approval by more than a majority vote of the Trustees, these Bylaws may be
amended or repealed or new or additional Bylaws may be adopted only by the vote
or written consent of a majority of the Trustees.
ARTICLE XV
MISCELLANEOUS
Section 15.1 References to Declaration of Trust. All references to the
Declaration of Trust shall include any amendments thereto.
Section 15.2 Inspection of Bylaws. The Trustees shall keep at the
principal office for the transaction of business of the Trust the original or a
copy of the Bylaws as amended or otherwise altered to date, certified by the
Secretary, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
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