EXHIBIT 3.1
HOSPITALITY PROPERTIES TRUST
AMENDED AND RESTATED BYLAWS
As Amended and Restated May 16, 2000
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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....................................................................3
Section 2.9. Voting....................................................................3
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.................................7
Section 2.17. Voting by Ballot..........................................................8
ARTICLE III TRUSTEES....................................................................................8
Section 3.1. General Powers; Qualifications; Trustees Holding Over.....................8
Section 3.2. Independent Trustees......................................................8
Section 3.3. Managing Trustees.........................................................8
Section 3.4. Number and Tenure.........................................................8
Section 3.5. Annual and Regular Meetings...............................................8
Section 3.6. Special Meetings..........................................................8
Section 3.7. Notice....................................................................8
Section 3.8. Quorum....................................................................9
Section 3.9. Voting....................................................................9
Section 3.10. Telephone Meetings........................................................9
Section 3.11. Informal Action by Trustees...............................................9
Section 3.12. Waiver of Notice..........................................................9
Section 3.13. Vacancies................................................................10
Section 3.14. Compensation; Financial Assistance.......................................10
Section 3.15. Removal of Trustees......................................................10
Section 3.16. Loss of Deposits.........................................................10
Section 3.17. Surety Bonds.............................................................10
Section 3.18. Reliance.................................................................10
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Section 3.19. Interested Trustee Transactions..........................................11
Section 3.20. Qualifying Shares Not Required...........................................11
Section 3.21. Certain Rights of Trustees, Officers, Employees and Agents...............11
Section 3.22. Certain Transactions.....................................................11
ARTICLE IV COMMITTEES.................................................................................11
Section 4.1. Number; Tenure and Qualifications........................................11
Section 4.2. Powers...................................................................11
Section 4.3. Meetings.................................................................11
Section 4.4. Telephone Meetings.......................................................12
Section 4.5. Informal Action by Committees............................................12
Section 4.6. Vacancies................................................................12
ARTICLE V OFFICERS...................................................................................12
Section 5.1. General Provisions.......................................................12
Section 5.2. Removal and Resignation..................................................12
Section 5.3. Vacancies................................................................13
Section 5.4. Chief Executive Officer..................................................13
Section 5.5. Chief Operating Officer..................................................13
Section 5.6. Chief Financial Officer..................................................13
Section 5.7. Chairman and Vice Chairman of the Board..................................13
Section 5.8. President................................................................13
Section 5.9. Vice Presidents..........................................................13
Section 5.10. Secretary................................................................14
Section 5.11. Treasurer................................................................14
Section 5.12. Assistant Secretaries and Assistant Treasurers...........................14
ARTICLE VI CONTRACTS, LOANS, CHECKS AND DEPOSITS......................................................14
Section 6.1. Contracts................................................................14
Section 6.2. Checks and Drafts........................................................14
Section 6.3. Deposits.................................................................15
ARTICLE VII SHARES.....................................................................................15
Section 7.1. Certificates.............................................................15
Section 7.2. Transfers................................................................15
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
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ARTICLE IX DISTRIBUTIONS..............................................................................16
Section 9.1. Authorization............................................................16
Section 9.2. Contingencies............................................................16
ARTICLE X SEAL.......................................................................................17
Section 10.1. Seal.....................................................................17
Section 10.2. Affixing Seal............................................................17
ARTICLE XI WAIVER OF NOTICE...........................................................................17
ARTICLE XII THE ADVISOR................................................................................17
Section 12.1. Employment of Advisor....................................................17
Section 12.2. Other Activities of Advisor..............................................18
ARTICLE XIII AMENDMENT OF BYLAWS........................................................................18
ARTICLE XIV MISCELLANEOUS..............................................................................19
Section 14.1. References to Declaration of Trust.......................................19
Section 14.2. Inspection of Bylaws.....................................................19
Section 14.3. Election to be Subject to Part of Title 3, Subtitle 8....................19
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HOSPITALITY 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 within six months after the end of each fiscal year.
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 (a) 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 (b) 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 once 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
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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 or otherwise properly brought before the shareholders by or at the
direction of the Trustees.
Section 2.7. Organization of Shareholder Meetings. Every meeting of
shareholders shall be conducted by an individual appointed by the Trustees to be
chairperson of the meeting or, in the absence of such appointment or the absence
of the appointed individual, by the chairman of the board or, in the case of a
vacancy in the office or absence of the chairman of the board, by one of the
following officers present at the meeting: the vice chairman of the board, if
there be one, the president, the vice presidents in their order of rank and
seniority or, in the absence of such officers, a chairperson chosen by the
shareholders by the vote of holders of shares of beneficial interest
representing a majority of the votes cast by shareholders present in person or
represented by proxy. The secretary or, in the secretary's absence, an assistant
secretary or, in the absence of both the secretary and any and all assistant
secretaries, a person appointed by the Trustees or, in the absence of such
appointment, a person appointed by the chairperson of the meeting shall act as
secretary of the meeting and record the minutes of the meeting. If the secretary
presides as chairperson at a meeting of the shareholders, then the secretary
shall not also act as secretary of the meeting and record the minutes of the
meeting. The order of business and all other matters of procedure at any meeting
of shareholders shall be determined by the chairperson of the meeting. The
chairperson of the meeting may prescribe such rules, regulations and procedures
and take such action as, in the discretion of such chairperson, are appropriate
for the proper conduct of the meeting, including, without limitation: (a)
restricting admission to the time set for the commencement of the meeting; (b)
limiting attendance at the meeting to shareholders of record of the Trust, their
duly authorized proxies or other such persons as the chairperson of the meeting
may determine; (c) limiting participation at the meeting on any matter to
shareholders of record of the Trust entitled to vote on such matter, their duly
authorized proxies or other such persons as the chairperson of the meeting may
determine; (d) limiting the time allotted to questions or comments by
participants; (e) maintaining order and security at the meeting; (f) removing
any shareholder or other person who refuses to comply with meeting procedures,
rules or guidelines as set forth by the chairperson of the meeting; and (g)
recessing or adjourning the meeting to a later date and time and place announced
at the meeting. Unless otherwise determined by the chairperson of the meeting,
meetings of shareholders shall not be required to be held in accordance with the
rules of parliamentary procedure or any established rules of order.
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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.
Section 2.10. Proxies. A shareholder may cast the votes entitled to be
cast 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 pursuant to an 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.
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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.
Section 2.13. Inspectors. At any meeting of shareholders, the
chairperson 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. Nominations of
persons for election to the Board of Trustees and business to be transacted by
the shareholders at an annual or special meeting of shareholders may be properly
brought before the meeting only by shareholders who comply with the terms and
provisions set forth in this Section 2.15. All judgments and determinations made
by the Board of Trustees or the chairperson of the meeting, as applicable, under
this Section 2.15 (including without limitation judgments as to whether any
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matter or thing is satisfactory to the Board of Trustees and determinations as
to the propriety of a proposed nomination or order of business) shall be made in
good faith.
Section 2.15.1 Annual Meetings of Shareholders. (a)
Nominations of persons for election to the Board of Trustees and business to be
transacted by the shareholders at an annual meeting of shareholders may be
properly brought before the meeting (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 is 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 complies with the terms and
provisions set forth in this Section 2.15.1.
(b) For nominations for election to the Board of Trustees or
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 and such business must
otherwise be a proper matter for action by shareholders. 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 date of mailing of the notice for the preceding year's annual
meeting; provided, however, that in the event that the date of mailing of the
notice for the annual meeting is advanced or delayed by more than thirty (30)
days from the anniversary date of the date of mailing of the notice for the
preceding year's annual meeting, notice by the shareholder to be timely must be
so delivered not earlier than the close of business on the 120th day prior to
the date of mailing of the notice for such annual meeting and not later than the
close of business on the later of: (i) the 90th day prior to the date of mailing
of the notice for such annual meeting or (ii) the 10th day following the day on
which public announcement of the date of mailing of the notice for such meeting
is first made by the Trust. In no event shall the public announcement of a
postponement of the mailing of the notice for such annual meeting or of an
adjournment or postponement 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: (A) as to each person whom the
shareholder proposes to nominate for election or reelection as a Trustee, (1)
such person's name, age, business address and residence address, (2) the class
and number of shares of beneficial interest of the Trust that are beneficially
owned or owned of record by such person and (3) all other 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 (or any successor provision) 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; (B) as to any business that the shareholder
proposes to bring before the meeting, a description of the business desired to
be brought before the meeting, the reasons for conducting such business at the
meeting and any interest of such shareholder in such business (including any
anticipated benefit to the shareholder therefrom) and of each beneficial owner,
if any, on whose behalf the proposal is made; and (C) as to the shareholder
giving the notice and each beneficial owner, if any, on whose behalf the
nomination or proposal is made, (1) the name and address of such shareholder, as
they appear on the Trust's share ledger and current name and address, if
different, of any such beneficial owner and (2) the class and number of shares
of the Trust which are owned beneficially and of record by such shareholder and
any such beneficial owner.
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(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 of such action or specifying the size of the increased
Board of Trustees at least one hundred (100) days prior to the first anniversary
of the date of mailing of notice for the preceding year's annual meeting, a
shareholder's notice required by this Section 2.15.1 also shall be considered
timely, but only with respect to nominees for any new positions created by such
increase, if the notice is delivered to the secretary at the principal executive
offices of the Trust not later than the close of business on the 10th day
immediately following the day on which such public announcement first is made by
the Trust.
Section 2.15.2 Shareholder Proposals Causing Covenant
Breaches. At the same time as or prior to the submission of any shareholder
proposal of business to be conducted at an annual meeting that, if approved and
implemented by the Trust, would cause the Trust to be in breach of any covenant
of the Trust in any existing or proposed debt instrument of the Trust or
agreement of the Trust with any lender, the proponent shareholder or
shareholders must submit to the secretary of the Trust at the principal
executive offices of the Trust (a) evidence satisfactory to the Board of
Trustees of the lender's willingness to waive the breach of covenant or (b) a
plan for repayment of the indebtedness to the lender, satisfactory to the Board
of Trustees, specifically identifying the source of funds to be used in the
repayment and presenting evidence satisfactory to the Board of Trustees that the
identified funds could be applied by the Trust to the repayment.
Section 2.15.3 Shareholder Proposals Requiring Regulatory
Notice, Consent or Approval. At the same time or prior to the submission of any
shareholder proposal of business to be conducted at an annual meeting that, if
approved, could not be implemented by the Trust without notifying or obtaining
the consent or approval of any federal, state, municipal or other regulatory
body, the proponent shareholder or shareholders must submit to the secretary of
the Trust at the principal executive offices of the Trust (a) evidence
satisfactory to the Board of Trustees that any and all required notices,
consents or approvals have been given or obtained or (b) a plan, satisfactory to
the Board of Trustees, for making the requisite notices or obtaining the
requisite consents or approvals, as applicable, prior to the implementation of
the proposal.
Section 2.15.4 Special Meetings of Shareholders. As set forth
in Section 2.3, only business properly brought before the meeting pursuant to a
proper notice of meeting by or at the direction of the Trustees shall be
conducted at a special meeting of shareholders. Nominations of persons for
election to the Board of Trustees only may be made at a special meeting of
shareholders at which Trustees are to be elected: (a) pursuant to the Trust's
notice of meeting; (b) by or at the direction of the Board of Trustees; or (c)
provided that the Board of Trustees has determined that Trustees shall be
elected at such special meeting, by any shareholder of the Trust who is a
shareholder of record both at the time of giving of notice provided for in this
Section 2.15.4 and at the time of the special meeting, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 2.15.4. 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 contains the information required by Section 2.15.1(b) and
the shareholder has given timely notice thereof in writing to the secretary of
the Trust at the principal
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executive offices of the Trust. To be timely, a shareholder's notice shall be
delivered to the secretary of the Trust 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 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 2.15.5 General.
(a) 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 as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 2.15 shall be
transacted at a meeting of shareholders. The chairperson of the meeting shall
have the power and duty to determine whether a nomination proposed to be made at
or any business proposed to be brought before the meeting was made at or brought
before the meeting, 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
made at or brought before the meeting in compliance with this Section 2.15, to
declare that such nomination or business is out of order and shall be
disregarded.
(b) For purposes of this Section 2.15, (i) the "date of
mailing of the notice" shall mean the date of the proxy statement for the
solicitation of proxies for the election of Trustees and (ii) "public
announcement" shall mean disclosure in (A) a press release either transmitted to
the principal securities exchange on which the Trust's common shares of
beneficial interest are traded or reported by a recognized news service or (B) a
document publicly filed by the Trust with the United States Securities and
Exchange Commission.
(c) The Trust shall not be required to include in the Trust's
proxy statement a shareholder nomination of one or more persons for election to
the Board of Trustees or a shareholder proposal of business to be brought before
an annual or special meeting of shareholders unless the proponent shareholder or
shareholders shall have complied with (i) all applicable requirements of state
and federal law and the rules and regulations thereunder, including without
limitation Rule 14a-8 (or any successor provision) under the Exchange Act, and
(ii) the applicable procedures and other requirements set forth in this Section
2.15. Nothing in this Section 2.15 shall be deemed to affect any right of the
Trust to omit a shareholder proposal from the Trust's proxy statement under the
Exchange Act, including without limitation nominations of persons for election
to the Board of Trustees and business to be brought before the shareholders at
an annual or special meeting of shareholders.
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, the
Declaration of Trust and hereby.
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Section 2.17. Voting by Ballot. Voting on any question or in any
election may be viva voce unless the presiding officer of the meeting 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.
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 Advisor (as defined in Article XII), 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 and Tenure. Pursuant to the Articles Supplementary
accepted for record by the State Department of Assessments and Taxation (the
"SDAT") as of May 16, 2000, the number of Trustees constituting the entire Board
of Trustees may be increased or decreased from time to time only by a vote of
the Trustees, provided however that the tenure of office of a Trustee shall not
be affected by any decrease in 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, delivered by electronic mail,
telephoned, facsimile-transmitted or mailed to each Trustee at his business or
residence address. Personally delivered, telegraphed,
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telephoned, facsimile-transmitted or electronically mailed 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 at least seventy-two (72) hours prior to the
meeting. Telephonic 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. Electronic mail
notice shall be deemed to be given upon transmission of the message to the
electronic mail address given to the Trust by the Trustee. 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 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 for that action 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,
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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. Pursuant to the Articles Supplementary
accepted for record by the SDAT as of May 16, 2000, 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 on the Board of Trustees may
be filled only by a majority of the remaining Trustees, even if the remaining
Trustees do not constitute a quorum. Any Trustee elected to fill a vacancy shall
hold office for the remainder of the full term of the class of Trustees in which
the vacancy occurred and until a successor is elected and qualifies.
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, 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 by 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.
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, 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.
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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 that 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 an audit committee and other committees, composed of three (3) or
more members, at least one (1) of which shall be a Trustee, to serve at the
pleasure of the Board of Trustees.
Section 4.2. Powers. The Trustees may delegate any of the powers of the
Trustees to committees appointed under Section 4.1 and composed solely of
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 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,
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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 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
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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 any 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, if any, 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, if any, shall preside at such meetings at which he shall be present. The
chairman and the vice chairman of the board, if any, 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, if any, 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 of the board or
if none are appointed, the Managing Trustees, or either of them, shall perform
all duties and have all power and authority assigned to the chairman under these
Bylaws.
Section 5.8. President. 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
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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 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.
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.
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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, as described in Section 5.2 of the Declaration of Trust. 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. 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.
Section 7.2. Transfers.
(a) Certificates shall be treated as negotiable and title
thereto and to the shares they represent shall be transferred, as described in
Sections 5.2 and 5.6 of the Declaration of Trust.
(b) 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 in these Bylaws or by the
laws of the State of Maryland.
(c) 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.
(a) 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
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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.
(b) 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.
(c) If no record date is fixed and the share transfer books
are not closed for the determination of shareholders, (i) 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 (ii) 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.
(d) 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.
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, as described in
Section 5.3 of the Declaration of Trust.
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
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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.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration
of Trust, these Bylaws or 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 XII
THE ADVISOR
Section 12.1. 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, shareholders, 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.
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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 12.2. 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 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.
Notwithstanding the foregoing, the Advisor shall be required to use its
best efforts to present the Trust with a continuing and suitable program
consistent with the investment policies and objectives of the Trust and with
investments which are representative of, comparable with and on similar terms as
investments being made by Affiliates of the Advisor, or by the Advisor for its
own account or for the account of any person for whom the Advisor is providing
advisory services. In addition, the Advisor shall be required to, upon the
request of any Trustee, promptly furnish the Trustees with such information on a
confidential basis as to any investments within the investment policies of the
Trust made by Affiliates of the Advisor or by the Advisor for its own account or
for the account of any person for whom the Advisor is providing advisory
services.
ARTICLE XIII
AMENDMENT OF BYLAWS
Except for any change for which the Declaration or these Bylaws
requires 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.
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ARTICLE XIV
MISCELLANEOUS
Section 14.1. References to Declaration of Trust. All references to the
Declaration of Trust shall include any amendments thereto.
Section 14.2. 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.
Section 14.3. Election to be Subject to Part of Title 3, Subtitle 8.
Notwithstanding any other provision contained in the Declaration of Trust or
these Bylaws, the Trust hereby elects to be subject to Section 3-804(b) and (c)
of Title 3, Subtitle 8 of the Corporations and Associations Article of the
Annotated Code of Maryland (or any successor statute). This section 14.3 only
may be repealed, in whole or in part, by a subsequent amendment to these Bylaws.
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