**Exhibit 3.2**

 

SENIOR HOUSING PROPERTIES TRUST

 

AMENDED AND RESTATED BYLAWS

 

As Amended and Restated ~~March 14,2003,~~

~~and as further amended on December 18,2003,~~

~~and as further amended on March 10,2004,~~

~~and as further amended on May 30,2007,and as further amended on March 24,~~November 5, 2008

 

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**Table of Contents**

** **
| 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~~Meetings.................................................................................................................. | 2 |
| Section 2.7.                                                                                                                                                                          |     | Organization of Shareholder Meetings.............................................................................................. | 2 |
| Section 2.8.                                                                                                                                                                          |     | Quorum.............................................................................................................................................. | 3 |
| Section 2.9.                                                                                                                                                                          |     | Voting................................................................................................................................................ | 3 |
| Section 2.10.                                                                                                                                                                         |     | Proxies............................................................................................................................................... | 4 |
| Section 2.11.                                                                                                                                                                         |     | ~~Voting Rights~~Record Date................................................................................................................. | 4 |
| Section 2.12.                                                                                                                                                                         |     | Voting of Shares by Certain Holders................................................................................................. | 4 |
| Section 2.13.                                                                                                                                                                         |     | Inspectors........................................................................................................................................... | 5 |
| Section 2.14.                                                                                                                                                                         |     | ~~Reports to Shareholders~~.................................................................................................................... | ~~5~~ |
| ~~Section 2.15.~~                                                                                                                                                                     |     | Nominations and Other Proposals  to be Considered at Meetings of  Shareholders........................... | ~~5~~5 |
| Section ~~2.15.1.~~2.14.1.                                                                                                                                                            |     | Annual Meetings of Shareholders....................................................................................... | 6 |
| Section ~~2.15.2.~~2.14.2.                                                                                                                                                            |     | Shareholder Nominations or Other  Proposals Causing Covenant Breaches or  Defaults.... | ~~9~~12 |
| Section ~~2.15.3.~~2.14.3.                                                                                                                                                            |     | Shareholder Nominations or Other Proposals  Requiring ~~Regulatory Notice, Consent or Approval9~~Governmental Action....................................................................................................... | 13 |
| Section ~~2.15.4.~~2.14.4.                                                                                                                                                            |     | Special Meetings of Shareholders....................................................................................... | ~~9~~14 |
| Section ~~2.15.5.~~2.14.5.                                                                                                                                                            |     | General................................................................................................................................ | ~~10~~14 |
| Section ~~2.16.~~2.15.                                                                                                                                                                |     | No Shareholder Actions by Written Consent.................................................................................... | ~~11~~16 |
| Section ~~2.17.~~2.16.                                                                                                                                                                |     | Voting by Ballot................................................................................................................................ | ~~11~~16 |
| Section 2.17.                                                                                                                                                                         |     | Proposals of Business Which Are  Not Proper Matters For Action By Shareholders........................ | 16 |
|                                                                                                                                                                                       |     |   |   |
| ARTICLE III TRUSTEES...................................................................................................................................................................    | ~~11~~17 |
| Section 3.1.                                                                                                                                                                          |     | General Powers; Qualifications; Trustees Holding Over.................................................................. | ~~11~~17 |
| Section 3.2.                                                                                                                                                                          |     | Independent Trustees and Managing Trustees.................................................................................. | ~~11~~17 |
| Section 3.3.                                                                                                                                                                          |     | ~~[Intentionally Omitted.]~~..................................................................................................................... | ~~18~~ |
| ~~Section 3.4.~~                                                                                                                                                                      |     | Number and Tenure........................................................................................................................... | ~~12~~18 |
| Section ~~3.5.~~3.4.                                                                                                                                                                  |     | Annual and Regular Meetings........................................................................................................... | ~~12~~18 |
| Section 3.5.                                                                                                                                                                          |     | Special Meetings............................................................................................................................... | 18 |
| Section 3.6.                                                                                                                                                                          |     | ~~Special Meetings~~Notice..................................................................................................................... | ~~12~~18 |
| Section 3.7.                                                                                                                                                                          |     | ~~Notice~~Quorum................................................................................................................................... | ~~12~~18 |
| Section 3.8.                                                                                                                                                                          |     | ~~Quorum~~Voting................................................................................................................................... | ~~13~~19 |
| Section 3.9.                                                                                                                                                                          |     | ~~Voting~~................................................................................................................................................ | ~~19~~ |
| ~~Section 3.10.~~                                                                                                                                                                     |     | Telephone Meetings.......................................................................................................................... | ~~13~~19 |

 

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| Section 3.10.                                                                                                                                                                       |     | Action by Written Consent of  Trustees.............................................................................................                        | 19        |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------|------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------|
| Section 3.11.                                                                                                                                                                       |     | ~~Informal Action by Trustees~~Waiver of Notice..................................................................................                          | ~~13~~19  |
| Section 3.12.                                                                                                                                                                       |     | ~~Waiver of Notice~~Vacancies...............................................................................................................               | ~~13~~19  |
| Section 3.13.                                                                                                                                                                       |     | ~~Vacancies~~Compensation....................................................................................................................              | ~~13~~20  |
| Section 3.14.                                                                                                                                                                       |     | ~~Compensation; Financial Assistance~~.................................................................................................                    | ~~20~~    |
| ~~Section 3.14.1.~~                                                                                                                                                                 |     | ~~Compensation~~....................................................................................................................................       | ~~20~~    |
| ~~Section 3.14.2.~~                                                                                                                                                                 |     | ~~Financial Assistance to Trustees~~........................................................................................................               | ~~20~~    |
| ~~Section 3.15.~~                                                                                                                                                                   |     | Removal of Trustees..........................................................................................................................              | ~~14~~20  |
| Section 3.15.                                                                                                                                                                       |     | Surety Bonds......................................................................................................................................         | 20        |
| Section 3.16.                                                                                                                                                                       |     | ~~Loss of Deposits~~Reliance...................................................................................................................            | ~~14~~20  |
| Section 3.17.                                                                                                                                                                       |     | ~~Surety Bonds~~......................................................................................................................................     | ~~21~~    |
| ~~Section 3.18.~~                                                                                                                                                                   |     | ~~Reliance~~.............................................................................................................................................. | ~~21~~    |
| ~~Section 3.19.~~                                                                                                                                                                   |     | Interested Trustee Transactions.........................................................................................................                   | ~~15~~21  |
| Section ~~3.20.~~3.18.                                                                                                                                                              |     | Qualifying Shares Not Required........................................................................................................                     | ~~15~~21  |
| Section ~~3.21.~~3.19.                                                                                                                                                              |     | Certain Rights of Trustees, Officers, Employees and Agents...........................................................                                      | ~~15~~21  |
| Section ~~3.22.~~3.20.                                                                                                                                                              |     | ~~Certain Transactions~~Emergency Provisions......................................................................................                         | ~~15~~21  |
|                                                                                                                                                                                     |     |                                                                                                                                                       |      |
| ARTICLE IV COMMITTEES.............................................................................................................................................................       | ~~15~~21 |
| Section 4.1.                                                                                                                                                                        |     | Number; Tenure and Qualifications...................................................................................................                       | ~~15~~21  |
| Section 4.2.                                                                                                                                                                        |     | Powers................................................................................................................................................     | ~~15~~22  |
| Section 4.3.                                                                                                                                                                        |     | Meetings.............................................................................................................................................      | ~~16~~22  |
| Section 4.4.                                                                                                                                                                        |     | Telephone Meetings...........................................................................................................................              | ~~16~~22  |
| Section 4.5.                                                                                                                                                                        |     | ~~Informal~~Action  by Written Consent of Committees..........................................................................                             | ~~16~~22  |
| Section 4.6.                                                                                                                                                                        |     | Vacancies...........................................................................................................................................       | ~~16~~23  |
|                                                                                                                                                                                     |     |                                                                                                                                                       |      |
| ARTICLE V OFFICERS.....................................................................................................................................................................  | ~~17~~23 |
| Section 5.1.                                                                                                                                                                        |     | General Provisions.............................................................................................................................            | ~~17~~23  |
| Section 5.2.                                                                                                                                                                        |     | Removal and Resignation..................................................................................................................                  | ~~17~~23  |
| Section 5.3.                                                                                                                                                                        |     | Vacancies...........................................................................................................................................       | ~~17~~23  |
| Section 5.4.                                                                                                                                                                        |     | Chief Executive Officer.....................................................................................................................               | ~~17~~23  |
| Section 5.5.                                                                                                                                                                        |     | Chief Operating Officer.....................................................................................................................               | ~~17~~24  |
| Section 5.6.                                                                                                                                                                        |     | Chief Financial Officer......................................................................................................................              | ~~18~~24  |
| Section 5.7.                                                                                                                                                                        |     | Chairman and Vice Chairman of the Board.......................................................................................                             | ~~18~~24  |
| Section 5.8.                                                                                                                                                                        |     | President.............................................................................................................................................     | ~~18~~24  |
| Section 5.9.                                                                                                                                                                        |     | Vice Presidents...................................................................................................................................         | ~~18~~24  |
| Section 5.10.                                                                                                                                                                       |     | Secretary............................................................................................................................................      | ~~18~~24  |
| Section 5.11.                                                                                                                                                                       |     | Treasurer............................................................................................................................................      | ~~18~~25  |
| Section 5.12.                                                                                                                                                                       |     | Assistant Secretaries and Assistant Treasurers..................................................................................                           | ~~19~~25  |
|                                                                                                                                                                                     |     |                                                                                                                                                       |      |
| ARTICLE VI CONTRACTS, LOANS, CHECKS AND DEPOSITS................................................................................................                                         | ~~19~~25 |
| Section 6.1.                                                                                                                                                                        |     | Contracts............................................................................................................................................      | ~~19~~25  |
| Section 6.2.                                                                                                                                                                        |     | Checks and Drafts..............................................................................................................................            | ~~19~~25  |
| Section 6.3.                                                                                                                                                                        |     | Deposits.............................................................................................................................................      | ~~19~~25  |
|                                                                                                                                                                                     |     |                                                                                                                                                       |      |
| ARTICLE VII SHARES...................................................................................................................................................................... | ~~19~~26 |
| Section 7.1.                                                                                                                                                                        |     | Certificates.........................................................................................................................................      | ~~19~~26  |
| Section 7.2.                                                                                                                                                                        |     | Transfers............................................................................................................................................      | ~~20~~26  |
| Section 7.3.                                                                                                                                                                        |     | ~~Replacement~~Lost  Certificates............................................................................................................              | ~~20~~ 26 |
| Section 7.4.                                                                                                                                                                        |     | Closing of Transfer Books or Fixing of Record Date........................................................................                                 | ~~20~~27  |

 

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| Section 7.5.                                                                                                                                                                           |     | Share Ledger......................................................................................................................................       | ~~21~~27 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------|----------------------------------------------------------------------------------------------------------------------------------------------------------|----------|
| Section 7.6.                                                                                                                                                                           |     | Fractional Shares; Issuance of Units..................................................................................................                   | ~~21~~27 |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE VIII REGULATORY COMPLIANCE  AND DISCLOSURE..........................................................................................                                                | 28       |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| Section 8.1.                                                                                                                                                                           |     | Actions Requiring Regulatory  Compliance Implicating the Trust....................................................                                       | 28       |
| Section 8.2.                                                                                                                                                                           |     | Compliance With Law.......................................................................................................................               | 29       |
| Section 8.3.                                                                                                                                                                           |     | Limitation on Voting Shares or  Proxies............................................................................................                      | 29       |
| Section 8.4.                                                                                                                                                                           |     | Representations, Warranties and  Covenants Made to Governmental or Regulatory Bodies............                                                         | 29       |
| Section 8.5.                                                                                                                                                                           |     | Board of Trustees’  Determinations....................................................................................................              | 29       |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE IX FISCAL YEAR.............................................................................................................................................................         | ~~21~~30 |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ~~ARTICLE IX DISTRIBUTIONS~~........................................................................................................................................................        | ~~30~~   |
| Section 9.1.                                                                                                                                                                           |     | ~~Authorization~~Fiscal Year...................................................................................................................          | ~~21~~30 |
| ~~Section 9.2.~~                                                                                                                                                                       |     | ~~Contingencies~~....................................................................................................................................    | ~~30~~   |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE X ~~SEAL~~DIVIDENDS AND  OTHER DISTRIBUTIONS................................................................................................                                        | ~~22~~30 |
| Section 10.1.                                                                                                                                                                          |     | Dividends and Other  Distributions....................................................................................................                   | 30       |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE XI SEAL............................................................................................................................................................................ | 30       |
| Section 11.1.                                                                                                                                                                          |     | Seal.................................................................................................................................................... | ~~22~~30 |
| Section ~~10.2.~~11.2.                                                                                                                                                                 |     | Affixing Seal......................................................................................................................................      | ~~22~~30 |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ~~ARTICLE XI INDEMNIFICATION AND ADVANCE OF EXPENSES~~.........................................................................................                                             | ~~30~~   |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE XII WAIVER OF NOTICE...............................................................................................................................................                 | ~~23~~31 |
| Section 12.1.                                                                                                                                                                          |     | Waiver of Notice................................................................................................................................         | 31       |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE XIII ~~THE ADVISOR~~AMENDMENT  OF BYLAWS......................................................................................................                                      | ~~23~~33 |
| Section 13.1.                                                                                                                                                                          |     | ~~Employment~~Amendment  of ~~Advisor~~Bylaws.....................................................................................                       | ~~23~~33 |
| ~~Section 13.2.~~                                                                                                                                                                      |     | ~~Other Activities of Advisor~~...............................................................................................................           | ~~33~~   |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ARTICLE XIV ~~AMENDMENT OF BYLAWS~~.................................................................................................................................                        | ~~33~~   |
|                                                                                                                                                                                        |     |                                                                                                                                                     |     |
| ~~ARTICLE XV~~MISCELLANEOUS....................................................................................................................................................             | ~~25~~33 |
| Section ~~15.1.~~14.1.                                                                                                                                                                 |     | References to Declaration of Trust....................................................................................................                   | ~~25~~33 |
| Section ~~15.2.~~14.2.                                                                                                                                                                 |     | Costs and Expenses...........................................................................................................................            | 33       |
| Section 14.3.                                                                                                                                                                          |     | Ratification........................................................................................................................................     | 33       |
| Section 14.4.                                                                                                                                                                          |     | Ambiguity..........................................................................................................................................      | 34       |
| Section 14.5.                                                                                                                                                                          |     | Inspection of Bylaws..........................................................................................................................           | ~~25~~34 |
| Section ~~15.3.~~14.6.                                                                                                                                                                 |     | Election to be Subject to Part of Title 3, Subtitle 8...........................................................................                    | ~~25~~34 |
| Section 14.7.                                                                                                                                                                          |     | Special Voting Provisions  relating to Control Shares.......................................................................                             | 34       |

 

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**SENIOR HOUSINGPROPERTIES TRUSTAMENDED AND RESTATED BYLAWS**

** **

**ARTICLE I**

**OFFICES**

** **

Section 1.1.            Principal Office.  The principal office of the Trust shall belocated at such place or places as the Board of Trustees may designate.

 

Section 1.2.            Additional Offices.  The Trust may have additional offices at suchplaces as the Board of Trustees may from time to time determine or the businessof the Trust may require.

 

**ARTICLE II**

**MEETINGS OF SHAREHOLDERS**

** **

Section 2.1.            Place.  All meetings of shareholders shall be held atthe principal office of the Trust or at such other place ~~within the UnitedStates~~as is designated by the Trustees or the chairman of the board orpresident~~, given either before or after the meeting and filed with thesecretary of the Trust~~.

 

Section 2.2.            Annual Meeting.  An annual meeting of the shareholders for theelection of Trustees and the transaction of any business within the powers ofthe Trust shall be held ~~within six months after the end of each fiscal year~~at such times as the Trustees may designate.  Failure to hold an annual meeting does notinvalidate the Trust~~’~~'s existence oraffect any otherwise valid acts of the Trust.

 

Section 2.3.            Special Meetings.  Special meetings of shareholders may becalled only by a majority of the Trustees thenin office.  If there shall be noTrustees, the officers of the Trust shall promptly call a special meeting ofthe shareholders entitled to vote for the election of successor Trustees~~.  No business shall be transacted by theshareholders at a special meeting other than business that is either (a) specifiedin the notice of meeting (or any supplement thereto) given by or at thedirection of the Trustees (or any duly authorized committee thereof) or (b) otherwiseproperly brought before the shareholders by or at the direction of the~~ for the purpose of electing Trustees.

 

Section 2.4.            Notice of Regular or Special Meetings.  Written notice specifying the place, day andhour of any regular or special meeting, the purposes of the meeting, to the extent required by law to be provided, andall other matters required by law shall be given to each shareholder of recordentitled to vote, either personally or by sending a copy thereof by mail, ~~telegraphor telecopier, charges~~postage prepaid,to his or her address appearing on thebooks of the Trust or theretofore given by him orher to the Trust for the purpose of notice or, if no address appears or

 

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has beengiven, addressed to the place where the principal office of the Trust issituated, or by electronic transmission,including facsimile transmission, to any address or number of such shareholderat which the shareholder receives electronic transmissions.  If mailed, such notice shall be deemed to begiven once deposited in the U.S.  mailaddressed to the shareholder at his or herpost office address as it appears on the records of the Trust, with postagethereon prepaid.  It shall be the duty ofthe secretary to give notice of each ~~Annual Meeting of the Shareholders atleast fifteen (15) days and not more than sixty (60) days before the date onwhich it is to be held.  Whenever anofficer has been duly requested by the Trustees to call a special~~meetingof the shareholders~~, it shall be hisduty 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 afterreceipt of such request~~.

 

Section 2.5.            Notice of Adjourned Meetings.  It shall not be necessary to give notice ofthe time and place of any adjourned meeting or of the business to be transactedthereat other than by announcement at the meeting at which such adjournment istaken~~, except that when a meeting is adjourned for more than 120 days afterthe original record date, notice of the adjourned meeting shall be given as inthe case of an original meeting~~.

 

Section 2.6.            Scope of ~~Notice~~Meetings. ~~No~~Except as otherwise expresslyset forth elsewhere in these Bylaws, no business shall be transacted at anannual or special meeting of shareholders except as specifically designated inthe notice or otherwise properly brought before the shareholders by or at thedirection of the Board of Trustees.

 

Section 2.7.            Organization of Shareholder Meetings.  Every meeting of shareholders shall beconducted by an individual appointed by the Boardof Trustees to be chairperson of the meeting or, in the absence of suchappointment or the absence of the appointed individual, by the chairman of theboard or, in the case of a vacancy in the office or absence of the chairman ofthe board, by one of the following officers present at the meeting in the following order:  the vice chairman of the board, if there beone, the president, the vice presidents in their order of ~~rank and~~seniorityor, in the absence of such officers, a chairperson chosen by the shareholdersby the vote of holders of shares of beneficial interest representing a majorityof the votes cast on such appointment byshareholders present in person or represented by proxy.  The secretary~~or, in the secretary’sabsence~~, an assistant secretary or~~, in the absence of both the secretaryand any and all assistant secretaries,~~ a person appointed by the Trusteesor, in the absence of such appointment, a person appointed by the chairpersonof the meeting shall act as secretary of the meeting and record the minutes ofthe meeting.  If the secretary presidesas chairperson at a meeting of the shareholders, then the secretary shall notalso act as secretary of the meeting and record the minutes of themeeting.  The order of business and allother matters of procedure at any meeting of shareholders shall be determinedby the chairperson of the meeting.  The chairpersonof the meeting may prescribe such rules, regulations and procedures and takesuch action as, in the discretion of such chairperson, are appropriate for theproper conduct of the meeting, including, without limitation: (a) restrictingadmission to the time set for the commencement of the meeting; (b) limitingattendance at the meeting to shareholders of record of the Trust, their dulyauthorized proxies or other such persons as the chairperson of the meeting maydetermine; (c) limiting participation at the meeting on any matter toshareholders of record of the Trust entitled to vote on such matter, their dulyauthorized proxies or other such persons as the chairperson of the meeting maydetermine; (d) limiting the time allotted to questions or comments byparticipants; 

 

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(e) maintainingorder and security at the meeting; (f) removing any shareholder or otherperson who refuses to comply with meeting procedures, rules or guidelinesas set forth by the chairperson of the meeting; ~~and~~(g) concluding a meeting or recessing or adjourningthe meeting to a later date and time and at a placeannounced at the meeting; and (h) complyingwith any state and local laws and regulations concerning safety andsecurity.  Without limiting thegenerality of the powers of the chairperson of the meeting pursuant to theforegoing provisions, the chairperson may adjourn any meeting of shareholdersfor any reason deemed necessary by the chairperson, including, withoutlimitation, if (i) no quorum is present for the transaction of thebusiness, (ii) the Board of Trustees or the chairperson of the meetingdetermines that adjournment is necessary or appropriate to enable theshareholders to consider fully information that the Board of Trustees or thechairperson of the meeting determines has not been made sufficiently or timelyavailable to shareholders or (iii) the Board of Trustees or thechairperson of the meeting determines that adjournment is otherwise in the bestinterests of the Trust.  Unlessotherwise determined by the chairperson of the meeting, meetings ofshareholders shall not be required to be held in accordance with the general rules of parliamentary procedureor any otherwise established rules oforder.

 

Section 2.8.            Quorum.  At any meeting of shareholders, the presencein person or by proxy of shareholders entitled to cast a majority of all thevotes entitled to be cast at such meeting shall constitute a quorum; but thissection shall not affect any requirement under any statute or the Declarationof Trust for the vote necessary for the adoption of any measure.  If, however, such quorum shall not be presentat any meeting of the shareholders, the ~~shareholders entitled to vote atsuch meeting, present in person or by proxy,~~chairpersonof the meeting shall have the power to adjourn the meeting from time totime ~~to a date not more than 120 days after the original record date.~~without the Trust having to set a new record dateor provide any additional notice of such meeting, subject to any obligation ofthe Trust to give notice pursuant to Section 2.5.  At such adjourned meeting at which a quorumshall be present, any business may be transacted which might have beentransacted at the meeting as originally notified.  The shareholders present, either in person orby proxy, at a meeting of shareholders which has been duly called and convenedand at which a quorum was established may continue to transact business untiladjournment, notwithstanding the withdrawal of enough votes to leave less thana quorum then being present at the meeting.

 

Section 2.9.            Voting.

 

(a)           With regard to election of a Trustee, and except asmay be mandated by applicable law or the listing requirements of the principalexchange on which the Trust’s common shares are ~~traded,~~listed: (i) a majority of all the votescast at a meeting of shareholders duly called and at which a quorum is presentshall be sufficient to elect a Trustee in an uncontested election; and (ii) amajority of all the shares entitled to vote at a meeting of shareholders dulycalled and at which a quorum is present shall be sufficient to elect a Trusteein a contested election (which, for purposes ofthese Bylaws, is an election at which the number of nominees exceeds the numberof Trustees to be elected at the meeting). Each share may be voted for as many individuals as there are Trustees tobe elected and for whose election the share is entitled to be voted.

 

(b)           With regard to any other matter which may properlycome before a meeting of shareholders duly called and at which a quorum ispresent, and except as may be

 

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mandatedby applicable law, by the listing requirements of the principal exchange onwhich the Trust~~’~~’s common shares are~~traded~~listed or by a specificprovision of the Declaration of Trust, (i) if such matter is approved byat least ~~seventy-five percent (~~75%~~)~~ of the Trustees then inoffice, including ~~seventy-five percent (~~75%~~)~~ of the IndependentTrustees then in office, a majority of all the votes cast at the meeting shallbe ~~sufficient~~required to approvesuch matter; and (ii) if such matter is not approved by at least ~~seventy-fivepercent (~~75%~~)~~ of the Trustees then in office, including ~~seventy-fivepercent (~~75%~~)~~ of the Independent Trustees then in office, ~~seventy-fivepercent (~~75%~~)~~ of all the shares entitled to vote at the meetingshall be ~~sufficient~~required toapprove such matter.

 

Section 2.10.          Proxies.  A shareholder may cast the votes entitled tobe cast by him or her either in person orby proxy executed by the shareholder or by his orher duly authorized agent in any manner permitted by law.  Such proxy shall be filed with such officerof the Trust or third party agent as the Board of Trustees shall have designated forsuch purpose for verification at or priorto such meeting.  Any proxy relating tothe Trust~~’~~’s shares of beneficialinterest shall be valid until the expiration date therein or, if no expirationis so indicated, for such period as is permitted pursuant to Maryland law.  At a meeting of shareholders, all questionsconcerning the qualification of voters, the validity of proxies, and theacceptance or rejection of votes, shall be decided by or on behalf of the ~~secretary of the meeting, unless inspectorsof election are appointed pursuant to Section 2.13, in which event suchinspectors shall pass upon all questions and shall have all other dutiesspecified in said section.~~chairperson ofthe meeting, subject to Section 2.13.

 

Section 2.11.          ~~Voting Rights~~Record Date.  The Board ofTrustees ~~shall~~may fix the date fordetermination of shareholders entitled to noticeof and to vote at a meeting of shareholders.  If no date is fixed for the determination ofthe shareholders entitled to vote at any meeting of shareholders, only personsin whose names shares entitled to vote ~~stand~~are recorded on the share records of the Trust at the opening ofbusiness on the day of any meeting of shareholders shall be entitled to vote atsuch meeting.

 

Section 2.12.          Voting of Shares by Certain Holders.  Shares of the Trust registered in the name ofa corporation, partnership, trust or other entity, if entitled to be voted, maybe voted by the president or a vice president, a general partner or trusteethereof, as the case may be, or a proxy appointed by any of the foregoingindividuals, unless some other person who has been appointed to vote suchshares pursuant to a bylaw or a resolution of the governing bo~~ar~~dy of such corporation or other entity orpursuant to an agreement of the partners of the partnership presents acertified copy of such bylaw, resolution or agreement, in which case suchperson may vote such shares.  Any trusteeor other fiduciary may vote shares registered in his or her name as such fiduciary, either in person or by proxy.

 

~~Shares of the Trust directly or indirectlyowned by it shall not be voted at any meeting and shall not be counted indetermining the total number of outstanding shares entitled to be voted at anygiven time, unless they are held by it in a fiduciary capacity, in which casethey may be voted and shall be counted in determining the total number ofoutstanding shares at any given time.~~

 

~~The Trustees may adopt by resolution aprocedure by which a shareholder may certify in writing to the Trust that anyshares registered in the name of the shareholder are held for the account of a specifiedperson other than the shareholder.  Theresolution shall set forth the class of~~

 

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~~shareholderswho may make the certification, the purpose for which the certification may bemade, the form of certification and the information to be contained in it; ifthe certification is with respect to a record date or closing of the sharetransfer books, the time after the record date or closing of the share transferbooks within which the certification must be received by the Trust; and anyother provisions with respect to the procedure which the Trustees considernecessary or desirable.  On receipt ofsuch certification, the person specified in the certification shall be regardedas, for the purposes set forth in the certification, the shareholder of recordof the specified shares in place of the shareholder who makes thecertification.~~

 

~~Notwithstanding any other provision containedherein or in the Declaration of Trust or these Bylaws, Title 3, Subtitle 7 ofthe Corporations and Associations Article of the Annotated Code ofMaryland (or any successor statute) shall not apply to any acquisition by anyperson of shares of beneficial interest of the Trust.  This section may be repealed, in whole or inpart, at any time, whether before or after an acquisition of control sharesand, 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.

 

(a)           ~~. At~~Before or at any meeting of shareholders, the chairperson of themeeting may appoint one or more persons as inspectors for such meeting.  Such inspectors shall (i) ascertain and report the number of shares of beneficial interest represented at themeeting~~based upon their determination of~~,in person or by proxy and the validity and effect of proxies, ~~count~~(ii) receive and tabulate all votes, ballots or consents, (iii) report ~~theresults~~such tabulation to the chairpersonof the meeting and (iv) performsuch other acts as are proper to conduct the election ~~and~~or voting at the meeting.

 

(b)           Each report of an inspector shall bein writing and signed by him or her or by amajority of them if there is more than one inspector acting at suchmeeting.  If there is more than oneinspector, the report of a majority shall be the report of the inspectors.  The report of the inspector or inspectors onthe number of shares represented at the meeting and the results of the votingshall be ~~primafacie~~prima facieevidence thereof.

 

~~Section 2.14.~~~~          Reports toShareholders.  The Trustees shall submit to the shareholdersat or before the annual meeting of shareholders a report of the business andoperations of the Trust during such fiscal year containing financial statementsof the Trust, accompanied by the report of an independent certified publicaccountant, and such further information as the Trustees may determine isrequired pursuant to any law or regulation to which the Trust is subject.  Within the earlier of twenty (20) days afterthe annual meeting of shareholders or 120 days after the end of the fiscal yearof the Trust, the Trustees shall place the annual report on file at theprincipal office of the Trust and with any governmental agencies as may berequired by law and as the Trustees may deem appropriate.~~

 

Section 2.14.          ~~Section 2.15.~~Nominations and Other Proposals to be Considered at Meetings ofShareholders~~.~~.  Nominations of individuals for election to the Boardof Trustees and the proposal of other business to be considered by theshareholders at ~~an annual or special meeting~~meetings of shareholders may be properly brought before the meetingonly as set forth in

 

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this Section ~~2.15.~~2.14.  All judgments and determinations made bythe Board of Trustees or the chairperson of the meeting, as applicable, underthis Section ~~2.15~~2.14(including, without limitation, judgments~~as to whether any matter orthing is satisfactory to the Board of Trustees~~ and determinations as to thepropriety of a proposed nomination or a proposal of other business for consideration by shareholders) shall befinal and binding unless determined by a court of competent jurisdiction tohave been made in bad faith.

 

Section 2.14.1.                      ~~Section 2.15.1.~~~~         ~~Annual Meetings of Shareholders.

 

(a)           Nominations of individuals forelection to the Board of Trustees and the proposal of other business to beconsidered by the shareholders at an annual meeting of shareholders may beproperly brought before the meeting (i) pursuant to the Trust~~’~~’s notice of meeting or otherwise properly brought before the meeting by or at thedirection of the Board of Trustees or (ii) byany shareholder of the Trust who (A) isa shareholder of record ~~both~~at the time of giving ~~of~~the notice~~by the shareholder~~ provided forin this Section ~~2.15.1~~2.14.1through and ~~at~~including the timeof the annual meeting~~, who~~ (includingany adjournment or postponement thereof), (B) is entitled to make nominations or propose other business and to voteat the meeting on such election, or the proposal for other business, as thecase may be, ~~and who complies with this Section 2.15.~~(C) complies with the notice procedures setforth in this Section 2.14 as to such nomination or other business and (D) hassubmitted the nomination or proposal of other business to the Board of Trusteesin accordance with the requirements set forth in the Declaration of Trust.  Section 2.14.1(a)(ii) shall be theexclusive means for a shareholder to make nominations or propose other businessbefore an annual meeting of shareholders, except to the extent of matters whichare required to be presented to shareholders by applicable law which have beenproperly presented in accordance with the requirements of such law.

 

(b)           For nominations for election to theBoard of Trustees or other business to be properly brought before an annualmeeting by a shareholder pursuant to Section ~~2.15.1~~2.14.1(a)(ii), the shareholder ~~must~~shall have given timely notice thereof inwriting to the secretary of the Trust inaccordance with this Section 2.14 and such other business ~~must~~shall otherwise be a proper matter for actionby shareholders.  To be timely, ashareholder~~’~~’s notice shall setforth all information required under this Section ~~2.15~~2.14 and shall be delivered to the secretaryat the principal executive offices of the Trust not later than 5:00 p.m.(Eastern Time) on the ~~90~~120th daynor earlier than the ~~120~~150th dayprior to the first anniversary of the date of the proxy statement for thepreceding year~~’~~’s annual meeting ;provided, however, that in the event that the date of the proxy statement for the annual meeting is~~advanced or delayed by~~more than 30 days ~~from~~earlier thanthe first anniversary of the date of the proxy statement for the preceding year~~’~~’s annual meeting, notice by the shareholderto be timely ~~must~~shall be sodelivered not ~~earlier than the 120th day prior to the first anniversary ofthe date of the proxy statement for the preceding year’s annual meeting and not~~later than 5:00 p.m. (Eastern Time) on~~the later of: (i) the90th day prior to the date of such annual meeting or (ii) ~~the 10th dayfollowing the earlier of the day on which (i) notice of the annual meeting is mailedor otherwise made available or (ii) public announcement of the date ofsuch meeting is first made by the Trust.  Notwithstanding the foregoing sentence, withrespect to the annual meeting to be held in

 

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calendar year 2009,to be timely, a shareholder’s notice shall be delivered to the secretary at theprincipal executive offices of the Trust not later than 5:00 p.m. (EasternTime) on December 31, 2008 nor earlier than December 1, 2008.  Neither the postponement oradjournment of an annual meeting, nor the public announcement of suchpostponement or adjournment, shall commence a new time period for the giving ofa shareholder~~’~~’s notice as describedabove.   No shareholder may give a noticeto the secretary described in this Section ~~2.15.1~~2.14.1(b) unless such shareholder holds acertificate for all shares of beneficial interest of the Trust owned by suchshareholder, and a copy of each such certificate shall accompany suchshareholder~~’~~’s notice to thesecretary in order for such notice to be effective.

 

                A shareholder~~’~~'snotice shall set forth:

 

(A)          as to eachindividual whom the shareholder proposes to nominate for election or reelectionas a Trustee (a ~~“~~"ProposedNominee~~”~~") and any ProposedNominee Associated Person (as defined ~~below~~in Section 2.14.1(d)), (1) the name, age, business addressand residence address of such Proposed Nominee and the name and address of suchProposed Nominee Associated Person, (2) a statement of whether suchProposed Nominee is proposed for nomination as an Independent Trustee (as defined in Section 3.2) or a ManagingTrustee (as defined in Section 3.2) anda description of such Proposed Nominee~~’~~’squalifications to be an Independent Trustee or Managing Trustee, as the casemay be, and such Proposed Nominee’squalifications to be a Trustee pursuant to the criteria set forth in Section 3.1,(3) the class, series and number of any shares of beneficial interestof the Trust that are, directly or indirectly,beneficially owned or owned of record by such Proposed Nominee or by suchProposed Nominee Associated Person, (4) the date such shares were acquiredand the investment intent of such acquisition, (5) a description of allpurchases and sales of securities of the Trust by such Proposed Nominee or bysuch Proposed Nominee Associated Person during the previous ~~twelve (12)~~24 month period, including the date of thetransactions, the class, series and number of securities involved in thetransactions and the consideration involved, (6) a description of allDerivative Transactions (as defined in Section 2.14.1(d))by such Proposed Nominee or by such Proposed Nominee Associated Personduring the previous ~~twelve (12)~~24month period, including the date of the transactions and the class, series andnumber of securities involved in, and the material economic terms of, thetransactions, such description to include,without limitation, all information that such Proposed Nominee or ProposedNominee Associated Person would be required to

 

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report on an InsiderReport (as defined in Section 2.14.1(d)) ifsuch Proposed Nominee or Proposed Nominee Associated Person were a Trustee ofthe Trust or the beneficial owner of more than ~~ten percent (~~10%~~)~~of the shares of the Trust at the time of the transactions, (7) any performance related fees (other than an assetbased fee) that such Proposed Nominee or such Proposed Nominee AssociatedPerson is entitled to based on any increase or decrease in the value of sharesof the Trust or instrument or arrangement of the type contemplated within thedefinition of Derivative Transaction, if any, as of the date of such notice,including, without limitation, any such interests held by members of suchProposed Nominee’s or such Proposed Nominee Associated Person’s immediatefamily sharing the same household with such Proposed Nominee or such ProposedNominee Associated Person, (8) any proportionate interest in shares of theTrust or instrument or arrangement of the type contemplated within thedefinition of Derivative Transaction held, directly or indirectly, by a generalor limited partnership in which such Proposed Nominee or such Proposed NomineeAssociated Person is a general partner or, directly or indirectly, beneficiallyowns an interest in a general partner, (9) a description of all direct andindirect compensation and other material monetary agreements, arrangements andunderstandings during the past three years, and any other materialrelationships, between or among such shareholder, Proposed Nominee AssociatedPerson, or their respective affiliates and associates, or others acting inconcert therewith, on the one hand, and each Proposed Nominee, or his or herrespective affiliates and associates, or others acting in concert therewith, onthe other hand, including, without limitation, all information that would be requiredto be disclosed pursuant to Item 404 of Regulation S-K promulgated by the U.S.Securities and Exchange Commission (the “S.E.C.”) (and any successorregulation), if the shareholder making the nomination and any Proposed NomineeAssociated Person on whose behalf the nomination is made, or any affiliate orassociate thereof or person acting in concert therewith, were the “registrant”for purposes of such rule and the Proposed Nominee were a director orexecutive officer of such registrant, (10) any rights to dividends on theshares of the Trust owned beneficially by such Proposed Nominee or suchProposed Nominee Associated Person that are separated or separable from theunderlying shares of the Trust, (11) to the extent known by such ProposedNominee

 

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or such ProposedNominee Associated Person, the name and address of any other person who owns,of record or beneficially, any shares of beneficial interest of the Trust andwho supports the Proposed Nominee for election or reelection as a Trustee, (~~8~~12) all other information relating to suchProposed Nominee or such Proposed Nominee Associated Person that is required tobe disclosed in solicitations of proxies for election of Trustees in anelection contest (even if an election contest is not involved), or is otherwiserequired, in each case, pursuant to ~~Regulation~~Section 14~~A~~ (or any successorprovision) ~~under~~of the SecuritiesExchange Act of 1934, as amended (the ~~“~~"ExchangeAct~~”) and (9~~"), and the rules andregulations promulgated thereunder and (13) such Proposed Nominee~~’~~'s notarized written consent to being named inthe shareholder’s proxy statement as anominee and to serving as a Trustee if elected;

 

(B)           as to any otherbusiness that the shareholder proposes to bring before the meeting, (1) adescription of such business, (2) the reasons for proposing such businessat the meeting and any material interest in such business of such shareholderor any Shareholder Associated Person (as defined ~~below~~in Section 2.14.1(d)), including anyanticipated benefit to such shareholder or any Shareholder Associated Persontherefrom~~and (3~~, (3) a descriptionof all agreements, arrangements and understandings between such shareholder andShareholder Associated Person amongst themselves or with any other person orpersons (including their names) in connection with the proposal of suchbusiness by such shareholder and (4) a representation that suchshareholder intends to appear in person or by proxy at the meeting to bring thebusiness before the meeting;

 

(C)           as to theshareholder giving the notice and any Shareholder Associated Person, (1) theclass, series and number of all shares of the Trust ~~which~~that are owned of record by such shareholderor by such Shareholder Associated Person, if any,~~and~~ (2) theclass, series and number of, and the nominee holder for, ~~all shares owned~~any shares of beneficial interests of the Trustthat are owned, directly or indirectly, beneficially but not of record bysuch shareholder or by such Shareholder Associated Person, if any, (3) with respect to the foregoing clauses (1) and(2), the date such shares were acquired and the investment intent of suchacquisition and (4) 

 

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all information relating to such shareholderand Shareholder Associated Person that is required to be disclosed inconnection with the solicitation of proxies for election of Trustees in anelection contest (even if an election contest is not involved), or is otherwiserequired, in each case, pursuant to Section 14 (or any successorprovision) of the Exchange Act and the rules and regulations promulgatedthereunder;

 

(D)          as to theshareholder giving the notice and any Shareholder Associated Person~~coveredby clause (B) or (C) above in this Section 2.15.1(b)~~, (1) thename and address of such shareholder, as they appear on the Trust~~’~~’s share ledger and the current name andaddress, if different, of such shareholder and ShareholderAssociated Person and (2) the investment strategy or objective, if any, ofsuch shareholder or Shareholder Associated Person and a copy of the prospectus,offering memorandum or similar document, if any, provided to investors orpotential investors in such shareholder or Shareholder Associated Person;

 

(E)           as to theshareholder giving the notice and any Shareholder Associated Person~~coveredby clause (B) or (C) above in this Section 2.15.1(b)~~, (1) adescription of all purchases and sales of securities of the Trust by suchshareholder or Shareholder Associated Person during the previous ~~twelve (12)~~24 month period, including the date of thetransactions, the class, series and number of securities involved in thetransactions and the consideration involved~~and~~, (2) a description of all Derivative Transactions by suchshareholder or Shareholder Associated Person during the previous ~~twelve (12)~~24 month period, including the date of thetransactions and the class, series and number of securities involved in, andthe material economic terms of, the transactions, such description to include, without limitation, all information thatsuch shareholder or Shareholder Associated Person would be required to reporton an Insider Report if such shareholder or Shareholder Associated Person werea Trustee of the Trust or the beneficial owner of more than ~~ten percent (~~10%~~)~~of the shares of the Trust at the time of the transactions, (3) any performance related fees (other than an asset based fee)that such shareholder or Shareholder Associated Person is entitled to based onany increase or decrease in the value of shares of the Trust or instrument orarrangement of the type contemplated within the definition of Derivative

 

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Transaction, if any, as of the date of such notice, including, withoutlimitation, any such interests held by members of such shareholder’s orShareholder Associated Person ‘s immediate family sharing the same householdwith such shareholder or Shareholder Associated Person, (4) anyproportionate interest in shares of the Trust or instrument or arrangement ofthe type contemplated within the definition of Derivative Transaction held,directly or indirectly, by a general or limited partnership in which suchshareholder or Shareholder Associated Person is a general partner or, directlyor indirectly, beneficially owns an interest in a general partner and (5) anyrights to dividends on the shares of the Trust owned beneficially by suchshareholder or Shareholder Associated Person that are separated or separablefrom the underlying shares of the Trust;~~and~~

 

(F)                                 to the extent known by the shareholdergiving the notice, the name and address of any other person who owns,beneficially or of record, any shares of beneficial interest of the Trust andwho supports the nominee for election or reelection as a Trustee or theproposal of other business~~on the date of such shareholder’s notice.~~; and

 

(G)                                if more than one class or series ofbeneficial interest in the Trust is outstanding, the class and series ofbeneficial interest of the Trust entitled to vote for such Proposed Nomineeand/or shareholder’s proposal, as applicable.

 

(c)           Notwithstandinganything in the second sentence of Section ~~2.15.1~~2.14.1(b) to the contrary, in the eventthat the number of Trustees to be elected to the Board of Trustees is increasedand there is no public announcement of such action at least ~~100~~130 days prior to the first anniversary of thedate of the proxy statement for the preceding year~~’~~’s annual meeting, a shareholder~~’~~'s notice required by this Section ~~2.15.1~~2.14.1 also shall be considered timely, butonly with respect to nominees for any new positions created by such increase,if the notice is delivered to the secretary at the principal executive officesof the Trust not later than 5:00 p.m. (Eastern Time) on the 10th dayimmediately following the day on which such public announcement is first madeby the Trust.

 

(d)           Forpurposes of this Section ~~2.15,~~2.14,(i) ~~“~~“Shareholder AssociatedPerson~~”~~" of any shareholdershall mean (A) any person ~~controlling, directly or indirectly, or~~actingin concert with, such shareholder, (B) anydirect or indirect beneficial owner of shares of beneficial interest of theTrust owned of record or beneficially by such shareholder and (C) anyperson controlling, controlled by or under common control with such shareholderor a Shareholder Associated Person; (ii) ~~“~~"Proposed Nominee Associated 

 

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Person~~”~~" of any Proposed Nominee shall mean (A) anyperson acting in concert with such Proposed Nominee, (B) any direct or indirect beneficial owner of sharesof beneficial interest of the Trust owned of record or beneficially by suchProposed Nominee and (C) any person controlling, controlled by or undercommon control with such Proposed Nominee or a Proposed Nominee AssociatedPerson; (iii) ~~“~~"DerivativeTransaction~~”~~" by a person shallmean any (A) transaction in, or arrangement, agreement or understandingwith respect to, any option, warrant, convertible security, stock appreciationright or similar right with an exercise, conversion or exchange privilege, orsettlement payment or mechanism related to, any security of the Trust, orsimilar instrument with a value derived in whole or in part from the value of asecurity of the Trust, in any such case whether or not it is subject tosettlement in a security of the Trust or otherwise or (B) any transaction,arrangement, agreement or understanding which included or includes anopportunity for such person, directly or indirectly, to profit or share in anyprofit derived from any increase or decrease in the value of any security ofthe Trust, to mitigate any loss or manage any risk associated with any increaseor decrease in the value of any security of the Trust or to increase ordecrease the number of securities of the Trust which such person was, is orwill be entitled to vote, in any such case whether or not it is subject tosettlement in a security of the Trust or otherwise; and (iv) ~~“~~"Insider Report~~”~~" shall mean a statement required to befiled pursuant to Section 16 of the Exchange Act (or any successorprovisions) by a person who is a Trustee of the Trust or who is directly orindirectly the beneficial owner of more than ~~ten percent (~~10%~~)~~ ofthe shares of the Trust.

 

Section 2.14.2.                 ~~Section 2.15.2.   ~~ShareholderNominations or Other Proposals Causing Covenant Breaches or Defaults. At the same time as ~~or priorto~~thesubmission of any shareholder nomination or proposal of other business to be considered at ~~an annual or special~~a shareholders meeting that, if approved and implemented by the Trust, would cause theTrust or anysubsidiary (as defined in Section 2.14.5(c)) of the Trust  to be in breach of any covenant ofthe Trust or anysubsidiary of the Trust or otherwise cause a default (in any case, with orwithout notice or lapse of time) in any existing~~or proposed~~ debt instrument~~,~~ or agreement of the Trust or any subsidiary of the Trust or other materialcontract or agreement of the Trust or any subsidiary of the Trust, the proponent shareholder orshareholders ~~must~~shall submit to the secretary ~~of the Trust~~at the principal executive offices of the Trust (a) evidencesatisfactory to the Board of Trustees of the lender~~’~~'s or contracting party~~’~~'s willingness to waive the breachof covenant or default or (b) a detailed plan forrepayment of the indebtedness to the lender or c~~o~~ur~~rect~~ing thecontractual breach or default and satisfying any resultingdamage claim,specifically identifying the actions to be taken or the source of funds~~to be used in the repayment~~, which plan must be satisfactoryto the Board of Trustees in its discretion~~.~~, and evidence of the availabilityto the Trust of substitute credit or contractual arrangements similar to thecredit or contractual arrangements which are implicated by the shareholdernomination or other proposal that are at least as favorable to the Trust, asdetermined by the Board of Trustees in its discretion.  As an example and not as a limitation, at thetime these Bylaws are being amended and restated, the Trust is party to a bankcredit facility that contains covenants which prohibit certain changes in themanagement and policies of the Trust without the approval of the lenders;accordingly, a shareholder nomination or proposal which implicates thesecovenants shall be accompanied by a waiver of these covenants duly executed bythe banks or by evidence satisfactory to the Board of Trustees of theavailability of funding to the Trust to repay outstanding indebtedness underthis credit facility and of the availability of a new credit facility on termsas favorable to the Trust as the existing credit facility.~~Section 2.15.3.~~

 

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Section 2.14.3.                 ~~Section 2.15.3.   ~~ShareholderNominations or ~~ProposalsRequiring Regulatory Notice, Consent or Approval~~Other Proposals RequiringGovernmental Action. ~~At the same time or prior to the~~If(a) submission of any shareholder ~~nominations or proposal of~~nomination or proposal of other business to beconsidered at ~~an annual or special~~ashareholders meeting that~~, if approved,~~ could not be considered or, if approved, implemented by theTrust without the Trust, any subsidiary of theTrust, the proponent shareholder, any Proposed Nominee of such shareholder, anyProposed Nominee Associated Person of such Proposed Nominee, any ShareholderAssociated Person of such shareholder, the holder of proxies or theirrespective affiliates or associates filing with or otherwise notifying orobtaining the consent~~or~~, approval or other action of any federal, state,municipal or other ~~regulatory body, the proponent shareholder orshareholders must submit to the secretary of the Trust at the principalexecutive offices of the Trust (a~~governmentalor regulatory body (a “Governmental Action”) or (b) such shareholder’sownership of shares of the Trust or any solicitation of proxies or votes orholding or exercising proxies by such shareholder, any Proposed Nominee of suchshareholder, any Proposed Nominee Associated Person of such Proposed Nominee,any Shareholder Associated Person of such shareholder, or their respectiveaffiliates or associates would require Governmental Action, then, at the sametime as the submission of any shareholder nomination or proposal of otherbusiness to be considered at a shareholders meeting, the proponent shareholderor shareholders shall submit to the secretary at the principal executiveoffices of the Trust (x) evidence satisfactory to the Board ofTrustees that any and all ~~required notices, consents or approvals have~~Governmental Action has been given orobtained, including, without limitation, such evidence as the Board of Trustees mayrequire so that any nominee may be determined to satisfy any suitability or~~other requirements or (b) a plan, for making the requisite notices orobtaining the requisite consents or approvals, as applicable, prior to theimplementation of the proposal or election~~other requirements or (y) if such evidence was not obtainable from a governmentalor regulatory body by such time despite the shareholder’s diligent and bestefforts, a detailed plan for making or obtaining the Governmental Action priorto the election of any such Proposed Nominee or the implementation of suchproposal, which plan must be satisfactory to the Board of Trustees in itsdiscretion.   As an example and not as a limitation, at thetime these Bylaws are being amended and restated, the Trust holds a controllingownership position in a company being formed and licensed as an insurancecompany in the State of Indiana.  Thelaws of the State of Indiana have certain regulatory requirements for anyperson who seeks to control (as defined under Indiana law) a company whichitself controls an insurance company domiciled in the State of Indiana,including by exercising proxies representing 10% or more of its votingsecurities.  Accordingly, a shareholderwho seeks to exercise proxies for a nomination or a proposal affecting thegovernance of the Trust shall obtain any applicable approvals from the Indianainsurance regulatory authorities prior to exercising such proxies.  Similarly, as a further example and not as alimitation, at the time these Bylaws are being amended and restated, the Trustowns healthcare facilities in various states; such facilities are governed byand subject to the regulatory and licensing requirements of the state in whichsuch facility is located.  The licensingterms or regulatory regime of certain states with jurisdiction over the Trustmay require that certain consents or approvals be obtained prior to the Trustconsidering or implementing certain actions, including potentially requiringthat a Proposed Nominee obtain regulatory approval or consent prior to beingnominated for or elected as a Trustee. Accordingly, a shareholder nomination or shareholder proposal that, ifapproved, would require the Trust to obtain the consent or approval of a stateauthority due to the fact that the Trust owns licensed healthcare facilities insuch state, shall be accompanied by evidence that the shareholder or 

 

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Proposed Nominee has either secured the required approvalsor consents from all applicable state regulatory authorities or if suchrequired approvals have not been obtained, then the shareholder nomination orother proposal shall be accompanied by a copy of any applications or formsrequired to be completed by the Proposed Nominee or shareholder as submitted orto be submitted to the applicable state authorities so that the Board ofTrustees may determine the likelihood that the shareholder or the ProposedNominee, as applicable, will receive any such required approval.

 

Section 2.14.4.                 ~~Section 2.15.4.   ~~Special Meetings of Shareholders.  As set forth in Section 2.6, onlybusiness brought before the meeting pursuant to the Trust~~’~~'s notice of meeting shall be conducted at aspecial meeting of shareholders. Nominations of individuals for election to the Board of Trustees onlymay be made at a special meeting of shareholders at which Trustees are to beelected: (a) pursuant to the Trust~~’~~'snotice of meeting; (b) otherwise properlybrought before the meeting by or at the direction of the Board of Trustees;or (c) provided that the Board of Trustees has determined that Trusteesshall be elected at such special meeting, by any shareholder of the Trust whois a shareholder of record both at the time of giving of notice provided for inthis Section ~~2.15.4~~2.14.4 throughand ~~at~~including the time of thespecial meeting, who is entitled to vote at the meeting on such election andwho has complied with the notice procedures set forth in this Section ~~2.15.4.~~2.14.4. In the event the Trust calls a special meeting of shareholders forthe purpose of electing one ~~(1) ~~or more Trustees to the Board ofTrustees, any such shareholder may nominate an individual or individuals (asthe case may be) for election as a Trustee as specified in the Trust’s noticeof meeting, if the shareholder’s notice contains the information required by Section ~~2.15.1(b)~~2.14 and the shareholder has given timelynotice thereof in writing to the secretary of the Trust at the principalexecutive offices of the Trust.  To betimely, a shareholder’s notice shall be delivered to the secretary of the Trustat the principal executive offices of the Trust not earlier than the ~~120~~150th day prior to such special meeting andnot later than 5:00 p.m. (Eastern Time) on the later of (i) the ~~90~~120th day prior to such special meeting or (ii) the10th day following the day on which public announcement is first made of thedate of the special meeting and of the nominees proposed by the Trustees to beelected at such meeting.  Neither thepostponement or adjournment of a special meeting, nor the public announcementof such postponement or adjournment, shall commence a new time period for thegiving of a shareholder’s notice as described above.

 

Section 2.14.5.               ~~Section2.15.5.   ~~General.

 

(a)           Ifinformation submitted pursuant to this Section ~~2.15~~2.14 by any shareholder proposing a nomineefor election as a Trustee or any proposal for other business at a meeting ofshareholders shall be deemed by the Board ofTrustees incomplete or inaccurate, any authorized officer or the Board ofTrustees or any committee thereof may treat such information as not having beenprovided in accordance with this Section ~~2.15.~~2.14.  Any notice submitted by ashareholder pursuant to this Section 2.14 that is deemed by the Board ofTrustees inaccurate, incomplete or otherwise fails to satisfy completely any provisionof this Section 2.14 shall be deemed defective and shall thereby renderall proposals and nominations set forth in such notice defective.  Upon written request by the secretary of the Trust or the Board of Trustees or anycommittee thereof (which may be made from timeto time), any shareholder proposing a nominee for election as a Trustee orany proposal for other business at a meeting of shareholders shall provide, 

 

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within three business days ~~of delivery of~~after such request (or such other period as may be specified in suchrequest), (i) written verification, satisfactory to the secretary or any otherauthorized officer or the Board of Trustees orany committee thereof, in his, her or its~~sole~~ discretion, todemonstrate the accuracy of any information submitted by the shareholderpursuant to this Section ~~2.15 and (ii~~2.14,(ii) written responses to information reasonably requested by thesecretary, the Board of Trustees or any committee thereof and (iii) awritten update, to a current date, of any information submitted by theshareholder pursuant to this Section ~~2.15~~2.14 as of an earlier date. If a shareholder fails to provide such written verification, information or~~such written~~ updatewithin such period, the secretary or any other authorized officer or the Board ofTrustees~~or any committee thereof~~ may treat the information ~~as to~~which~~written~~was previously provided and towhich the verification~~or written~~,request or update ~~was requested~~relatesas not having been provided in accordance with this Section ~~2.15.  Nothing in this Section 2.15.5(a) shallrequire~~2.14; provided, however, that nosuch written verification, response or update shall cure any incompleteness,inaccuracy or failure in any notice provided by a shareholder pursuant to this Section 2.14.  It is the responsibility of a shareholder whowishes to make a nomination or other proposal to comply with the requirementsof Section 2.14; nothing in this Section 2.14.5(a) or otherwiseshall create any duty of the Trust, the Board of Trustees or any committeethereof nor any officer of the Trust to inform a shareholder that theinformation submitted pursuant to this Section 2.14 by or on behalf ofsuch shareholder is incomplete or inaccurate or not otherwise in accordancewith this Section 2.14 nor require the Trust, the Board of Trustees, anycommittee of the Board of Trustees or any officer of the Trust to requestclarification or updating of information provided by any shareholder, but the Board of Trustees, a committeethereof or the secretary acting on behalf of the Board of Trustees or a committee, may do so in its, his or her discretion.

 

(b)           Only such individuals who are nominated in accordancewith this Section ~~2.15~~2.14shall be eligible for election by shareholders as Trustees and only suchbusiness shall be conducted at a meeting of shareholders as shall have been properly brought before the meeting inaccordance with this Section ~~2.15.~~2.14.  The chairperson of the meeting and the Board of Trustees shall each have the power to determine whether anomination or any other business proposed to be brought before the meeting wasmade or proposed, as the case may be, in accordance with this Section ~~2.15~~2.14 and, if any proposed nomination or otherbusiness is determined not to be in compliance with this Section ~~2.15,~~2.14, to declare that such defectivenomination or proposal be disregarded.

 

(c)           For purposes of this Section ~~2.15, “~~2.14: (i) “public announcement~~”~~“ shall mean disclosure in (~~i~~A) a press release reported by the Dow JonesNews Service, Associated Press, Business Wire, PR Newswire or any other widelycirculated news or wire service or (~~ii~~B)a document publicly filed by the Trust with the United States Securities andExchange Commission pursuant to the Exchange Act;and (ii) “subsidiary” shall include, with respect to a person, anycorporation, partnership, joint venture or other entity of which such person (A) owns,directly or indirectly, 10% or more of the outstanding voting securities orother interests or (B) has a person designated by such person serving on,or a right, contractual or otherwise, to designate a person, so to serve on,the board of directors (or analogous governing body).

 

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(d)           Notwithstanding the foregoing provisions of this Section ~~2.15,~~2.14, a shareholder shall also comply with allapplicable legal requirements, including,without limitation, applicable requirements of state law and the ExchangeAct and the rules and regulations thereunder,with respect to the matters set forth in this Section ~~2.15.~~2.14.  Nothingin this Section ~~2.15~~2.14 shallbe deemed to require that a shareholder nomination of an individual forelection to the Board of Trustees or a shareholder proposal relating to otherbusiness be included in the Trust~~’~~’sproxy statement, except as may be requiredby law.

 

(e)           The Board of Trustees may from time to time requireany individual nominated to serve as a Trustee to agree in writing with regardto matters of business ethics and confidentiality while such nominee serves asa Trustee, such agreement to be on the terms and in a form (the ~~“~~"Agreement~~”~~") determined satisfactory by the Board of Trustees, as amendedand supplemented from time to time in the discretion of the Board ofTrustees.  The terms of the Agreement maybe substantially similar to the Code of Business Conduct and Ethics of theTrust or any similar code promulgated by the Trust (the ~~“~~"Code of Business Conduct~~”~~") or may differ from or supplement theCode of Business Conduct.

 

(f)         Determinations required or permitted to bemade under this Section 2.14 by the Board of Trustees may be delegated bythe Board of Trustees to a committee of the Board of Trustees, subject toapplicable law.

 

Section 2.15.       ~~Section 2.16.~~No Shareholder Actions by Written Consent.  Shareholders shall not be authorized orpermitted to take any action required or permitted to be taken at a meeting ofshareholders by written consent, and may take such action only at ~~an annualor special~~shareholders meeting ~~asprovided by Maryland law,~~of the ~~Declarationof~~Trust~~and hereby~~.

 

Section 2.16.       ~~Section 2.17.~~Voting by Ballot.  Voting on any question or in any election maybe ~~viva~~voice vo~~c~~te unless the ~~presiding officer~~chairperson of the meeting or any shareholdershall demand that voting be by ballot.

 

Section 2.17.       Proposals of Business Which Are Not Proper Matters For Action ByShareholders.  Notwithstanding anythingin these Bylaws to the contrary, subject to applicable law, any shareholderproposal for business the subject matter or effect of which would be within theexclusive purview of the Board of Trustees or would reasonably likely, ifconsidered by the shareholders or approved or implemented by the Trust, resultin an impairment of the limited liability status for the Trust’s shareholders,shall be deemed not to be a matter upon which the shareholders are entitled tovote.  The Board of Trustees in itsdiscretion shall be entitled to determine whether a shareholder proposal forbusiness is not a matter upon which the shareholders are entitled to votepursuant to this Section 2.17, and its decision shall be final and bindingunless determined by a court of competent jurisdiction to have been made in badfaith.

 

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**ARTICLE IIITRUSTEES**

** **

Section 3.1.            GeneralPowers; Qualifications; Trustees Holding Over.  The business and affairs of the Trust shallbe 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.  To qualifyfor nomination or election as a Trustee, an individual, at the time ofnomination and election, shall, without limitation, (a) have substantialexpertise or experience relevant to the business of the Trust and itssubsidiaries, (b) not have been convicted of a felony and (c) meetthe qualifications of an Independent Trustee or a Managing Trustee, each asdefined in Section 3.2, as the case may be, depending upon the positionfor which such individual may be nominated and elected.  In case of failure to elect Trustees atan annual meeting of the shareholders, the incumbentTrustees ~~holding~~shall hold over ~~shall~~and continue to direct the management of thebusiness and affairs of the Trust until theymay resign or until their successors are elected and qualify.

 

Section 3.2.            IndependentTrustees and Managing Trustees.  Amajority of the Trustees holding office shall at all times be IndependentTrustees~~(as defined below)~~; provided, however, that upon a failure tocomply with this requirement as a result of the creation of a temporary vacancywhich ~~must~~shall be filled by anIndependent Trustee, whether as a result of enlargement of the Board ofTrustees or the resignation, removal or death of a Trustee who is anIndependent Trustee, such requirement shall not be applicable.  An ~~“~~"IndependentTrustee~~”~~" is one who is not anemployee of the Advisor (as defined in the Declaration of Trust), who is notinvolved in the Trust~~’~~’s day~~-~~to~~-~~ day activities, who meets thequalifications of an independent trustee under the Declaration of Trust andwho meets the qualifications of an independent director (not including the specific independence requirements applicable only tomembers of the Audit Committee of the Board of Trustees) under theapplicable rules of each ~~National Securities Exchange~~stock exchange upon which shares of the Trustare listed for trading and the Securities and Exchange Commission, as thoserequirements may be amended from time to time. If the number of Trustees, at any time, is set at less than five~~(5)~~,at least one~~(1) ~~Trustee shall be a Managing Trustee.  So long as the number of Trustees shall befive ~~(5) ~~or greater, at least two ~~(2) ~~Trustees shallbe Managing Trustees.  ~~“~~"Managing Trustees~~”~~" shall mean Trustees who are notIndependent Trustees and who have been employees of the Advisor or involved inthe day to day activities of the Trust for at least one ~~(1) ~~yearprior to their election.  If at any timethe Board of Trustees shall not be comprised of a majority of IndependentTrustees, the Board of Trustees shall take such actions as will cure suchcondition; provided that the fact that the Board of Trustees does not have amajority of Independent Trustees or has nottaken such action at any time or from time to time shall not affect thevalidity of any action taken by the Board of Trustees.  If at any time the Board ofTrustees shall not be comprised of a number of Managing Trustees as is requiredunder this Section 3.2, the Board of Trustees shall take such actions aswill cure such condition; provided that the fact that the Board of Trusteesdoes not have the requisite number of Managing Trustees or has not taken suchaction at any time or from time to time shall not affect the validity of anyaction taken by the Board of Trustees.

 

~~Section 3.3.           ~~~~[Intentionally Omitted.]~~

 

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Section 3.3.            ~~Section 3.4.~~Number and Tenure.  Pursuant to the Articles Supplementaryaccepted for record by the State Department of Assessments and Taxation (the ~~“~~"SDAT~~”~~") as of May 11, 2000, the number of Trustees constitutingthe entire Board of Trustees may be increased or decreased from time to timeonly by a vote of the Trustees~~,~~;provided however that the tenure of office of a Trustee shall not be affectedby any decrease in the number of Trustees. The number of Trustees shall be five ~~(5) ~~until increased ordecreased by the Board of Trustees.

 

                The Board of Trustees shall beclassified into three groups: Group I, Group II and Group III.  A majority of the entire Board of Trusteesshall designate the Group of which each Trustee shall be a member.

 

Section 3.4.            ~~Section 3.5.~~Annual and Regular Meetings.  An annual meeting of the Trusteesshall be held immediately after~~and at the same place as~~ the annualmeeting of shareholders, no notice other than this Bylaw being necessary.  The time and place of the annual meeting ofthe Trustees may be changed by the Board of Trustees.  The Trustees may provide, by resolution, thetime and place, either within or without the State of Maryland, for the holdingof regular meetings of the Trustees without other notice than such resolution.  In theevent any such regular meeting is not so provided for, the meeting may be heldat such time and place as shall be specified in a notice given as hereinafterprovided for special meetings of the Board of Trustees.

 

Section 3.5.            ~~Section 3.6.~~Special Meetings.  Special meetings of the Trustees may becalled at any time by ~~the chairman of the board,~~any Managing Trustee~~or~~, the president ~~and shall becalled by~~or pursuant to the request ofany two~~(2) ~~Trustees then in office.  The person or persons authorized to callspecial meetings of the Trustees may fix any place, either within or withoutthe State of Maryland, as the place for holding any special meeting of theTrustees called by them.

 

Section 3.6.            ~~Section 3.7.~~Notice.  Notice of any special meeting shall be givenby written notice delivered personally~~, telegraphed, delivered~~ or by electronic mail, telephoned, facsimile~~-~~transmitted, overnight couriered (with proof ofdelivery) or mailed to each Trustee at his orher business or residence address. Personally delivered, ~~telegraphed,~~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.  If mailed,such notice shall be deemed to be given when deposited in the U.S.  mail properly addressed, with postage thereonprepaid.  ~~If given by telegram, suchnotice shall be deemed to be given when the telegram is delivered to thetelegraph company. ~~Electronic mailnotice shall be deemed to be given upon transmission of the message to theelectronic mail address given to the Trust by the Trustee.  Telephone notice shall be deemed given whenthe Trustee is personally given such notice in a telephone call to which he isa party.  Facsimile~~-~~ transmissionnotice shall be deemed given upon completion of the transmission of the messageto the number given to the Trust by the Trustee and receipt of a completedanswer~~-~~ back indicating receipt.  If sent by overnight courier, such noticeshall be deemed given when delivered to the courier.  Neither the business to be transacted at, northe purpose of, any annual, regular or special meeting of the Trustees need bestated in the notice, unless specifically required by statute or these Bylaws.

 

Section 3.7.            ~~Section 3.8.~~Quorum.  A majority of the Trustees shall constitute aquorum for transaction of business at any meeting of the Trustees, providedthat, if less than a majority of such Trustees are present at a meeting, amajority of the Trustees present may adjourn the meeting 

 

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from timeto time without further notice, and provided further that if, pursuant to theDeclaration of Trust or these Bylaws, the vote of a majority of a particulargroup of Trustees is required for action, a quorum for that action ~~must~~shall also include a majority of suchgroup.  The Trustees present at a meetingof the Board of Trustees which has beenduly called and convened and at which a quorumwas established may continue to transact business until adjournment,notwithstanding the withdrawal of ~~enough Trustees to leave less than aquorum.~~a number of Trustees resulting inless than a quorum then being present at the meeting.

 

Section 3.8.            ~~Section 3.9.~~Voting.  The action of the majority of the Trusteespresent at a meeting at which a quorum is orwas present shall be the action of the Trustees, unless the concurrence ofa greater proportion is required for such action by specific provision of anapplicable statute, the Declaration of Trust orthese Bylaws.  If enough Trustees havewithdrawn from a meeting to leave fewer than are required to establish aquorum, but the meeting is not adjourned, the action of the majority of thatnumber of Trustees necessary to constitute a quorum at such meeting shall bethe action of the Board of Trustees, unless the concurrence of a greaterproportion is required for such action by applicable law, the Declarationof Trust or these Bylaws.

 

Section 3.9.            ~~Section 3.10.~~Telephone Meetings.  Trustees may participate in a meeting bymeans of a conference telephone or similar communications equipment if allpersons participating in the meeting can hear each other at the same time.  Participation in a meeting by these meansshall constitute presence in person at the meeting.  Such meeting shall be deemed to have beenheld at a place designated by the Trustees at the meeting.

 

Section 3.10.          ~~Section 3.11.Informal~~Action by Written Consent ofTrustees.  Unlessspecifically otherwise provided in the Declaration of Trust, any actionrequired or permitted to be taken at any meeting of the Trustees may be takenwithout a meeting, if a majority of the Trustees shall individually orcollectively consent in writing to such action. Such written consent or consents shall be filed with the records of theTrust and shall have the same force and effect as the affirmative vote of suchTrustees at a duly held meeting of the Trustees at which a quorum was present.

 

Section 3.11.          ~~Section 3.12.~~Waiver of Notice.  The actions taken at any meeting of theTrustees, however called and noticed or wherever held, shall be as valid asthough taken at a meeting duly held after regular call and notice if a quorumis present and if, either before or after the meeting, each of the Trustees notpresent ~~signs a written waiver of~~waivesnotice, ~~a consent~~consents to theholding of such meeting or ~~an approval of~~approvesthe minutes thereof.  ~~All suchwaivers, consents or approvals shall be lodged with the Trust records or made apart of the minutes of the meeting.~~

 

Section 3.12.          ~~Section 3.13.~~Vacancies.  Pursuant to the Articles Supplementaryaccepted for record by the SDAT as of May ~~11,~~16, 2000, if for any reason any or all the Trustees cease to beTrustees, such event shall not terminate the Trust or affect these Bylaws orthe powers of the remaining Trustees hereunder (even if fewer than three~~(3) ~~Trusteesremain).  Any vacancy on the Board ofTrustees may be filled only by a majority of the remaining Trustees, even ifthe remaining Trustees do not constitute a quorum.  Any Trustee elected to fill a vacancy, whether occurring due to an increase in size ofthe Board of Trustees or by the death, resignation or removal of any 

 

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Trustee, shallhold office for the remainder of the full term of the class of Trustees inwhich the vacancy occurred or was created anduntil a successor is elected and qualifies.

 

~~The number of Trustees in Group Ishall be two (2), the number of Trustees in Group II shall be two (2), and thenumber of Trustees in Group III shall be one (1) (each of Group I, GroupII and Group III being referred to herein as a “Group”).  A majority of the entire Board of Trusteesshall designate the Group of which each Trustee shall be a member, subject tothe limitations contained in Section 5.2.2 of the Declaration ofTrust.  In the event the Trustees reducethe size of the Board of Trustees, the majority of the entire Board of Trusteesshall reduce the size of one or more Group or Groups by the aggregate reductionin the number of the Trustees, subject to the limitations contained in Section 5.2.2of the Declaration of Trust.~~

 

~~Section 3.14.~~~~         ~~~~Compensation;Financial Assistance.~~

 

Section 3.13.          ~~Section 3.14.1.~~~~      ~~Compensation. The Trustees shall be entitled to receive such reasonable compensationfor their services as Trustees as the Trustees may determine from time totime.  Trustees may be reimbursed forexpenses of attendance, if any, at each annual, regular or special meeting ofthe Trustees or of any committee thereof; and for their expenses, if any, inconnection with each property visit and any other service or activity performedor engaged in as Trustee.  The Trusteesshall be entitled to receive remuneration for services rendered to the Trust inany other capacity, and such services may include, without limitation, servicesas an officer of the Trust, services as an employee of the Advisor, legal,accounting or other professional services, or services as a broker, transferagent or underwriter, whether performed by a Trustee or any person affiliatedwith a Trustee.

 

~~Section 3.14.2.~~~~          ~~~~Financial Assistance to Trustees~~~~. The Trust may lend money to, guarantee an obligation of or otherwiseassist a Trustee or a trustee of its direct or indirect subsidiary.  The loan, guarantee or other assistance maybe with or without interest, unsecured or secured in any manner that the Boardof Trustees approves, including by a pledge of shares.~~

 

Section 3.14.          ~~Section 3.15.~~Removal of Trustees~~.  The shareholders may, at any time, remove anyTrustee in the manner provided in the Declaration of Trust.~~

 

~~Section 3.16.~~~~         ~~~~Loss ofDeposits~~~~. No Trustee shall be liable for any loss which may occur by reason of thefailure of the bank, trust company, savings and loan association or otherinstitution with whom moneys or shares have been deposited.~~. A Trustee may be removed at any time with or without cause by theaffirmative vote either of all the remaining Trustees or, at a meeting of theshareholders properly called for that purpose, by the affirmative vote of theholders of not less than two-thirds of the shares of the Trust then outstandingand entitled to vote generally in the election of Trustees.

 

Section 3.15.          ~~Section 3.17.~~Surety Bonds.  Unless specifically required by law, noTrustee shall be obligated to give any bond or surety or other security for theperformance of any of his or her duties.

 

Section 3.16.          ~~Section 3.18.~~Reliance.  Each Trustee, officer, employee and agent ofthe Trust shall, in the performance of his orher duties with respect to the Trust, be ~~fully justified and~~

 

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~~protectedwith regard to any act or failure to act in reliance in good faith upon thebooks of account or other records of the Trust, upon an opinion of counsel orupon reports made to the Trust by any of its officers or employees~~entitled to rely on anyinformation, opinion, report or statement, including any financial statement orother financial data, prepared or presented by an officer or employee of theTrust or by the Advisor, accountants, appraisers or otherexperts or consultants selected by the Board ofTrustees or officers of the Trust, regardless of whether such counsel or expertmay also be a Trustee.

 

Section 3.17.          ~~Section 3.19.~~Interested Trustee Transactions.  Section 2-419 of the MarylandGeneral Corporation Law~~(the “MGCL”)~~ shall be available for and apply toany contract or other transaction between the Trust and any of its Trustees orbetween the Trust and any other trust, corporation, firm or other entity inwhich any of its Trustees is a trustee or director or has a material financialinterest.

 

Section 3.18.          ~~Section 3.20.~~Qualifying Shares Not Required.  Trustees need not be shareholdersof the Trust .

 

Section 3.19.          ~~Section 3.21.~~Certain Rights of Trustees, Officers, Employees andAgents.  ~~The~~A Trustee~~s~~ shall have no responsibilityto devote ~~their~~his or her full timeto the affairs of the Trust.  Any Trusteeor officer, employee or agent of the Trust, in his or her personal capacity or in a capacity as an affiliate, employeeor agent of any other person, or otherwise, may have business interests andengage in business activities similar or in addition to those of or relating tothe Trust.

 

~~Section 3.22.~~~~         ~~~~CertainTransactions~~~~. Notwithstanding any other provision in the Bylaws, no determinationshall be made by the Trustees nor shall any transaction be entered into by theTrust that would cause any shares or other beneficial interest in the Trust notto constitute “transferable shares” or “transferable certificates of beneficialinterest” under Section 856(a)(2) of the Internal Revenue Code of1986, as amended (the “Code”), or which would cause any distribution toconstitute a preferential dividend as described in Section 562(c) ofthe Code.~~

 

Section 3.20.                Emergency Provisions.  Notwithstanding any other provision in theDeclaration of Trust or these Bylaws, this Section 3.20 shall apply duringthe existence of any catastrophe, or other similar emergency condition, as aresult of which a quorum of the Board of Trustees under ARTICLE III cannotreadily be obtained (an “Emergency”). During any Emergency, unless otherwise provided by the Board ofTrustees, (a) a meeting of the Board of Trustees may be called by anyManaging Trustee or officer of the Trust by any means feasible under thecircumstances and (b) notice of any meeting of the Board of Trusteesduring such an Emergency may be given less than 24 hours prior to the meetingto as many Trustees and by such means as it may be feasible at the time,including publication, television or radio.

 

**ARTICLE IV**

** **

**COMMITTEES**

** **

Section 4.1.            Number;Tenure and Qualifications.  The Board of Trustees shall appoint an AuditCommittee, a Compensation Committee and a Nominating and GovernanceCommittee.  Each of th~~o~~ese committees shall be composed of three ~~of~~or more Trustees, to serve at the pleasure 

 

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of the Boardof Trustees.  The Board of Trustees mayalso appoint other committees from time to time composed of one or moremembers, at least one of which shall be a Trustee, to serve at the pleasure ofthe Board of Trustees.  The Board ofTrustees shall adopt a charter with respect to the Audit Committee, theCompensation Committee and the Nominating and Governance Committee, whichcharter shall specify the purposes, the criteria for membership and theresponsibility and duties and may specify other matters with respect to each ~~such~~committee.  The Board of Trustees mayalso adopt a charter with respect to other committees~~of the Board ofTrustees~~.

 

Section 4.2.            Powers.  The Trustees may delegate any ofthe powers of the Trustees to committees appointed under Section 4.1 andcomposed solely of Trustees, except as prohibited by law.  In the event that a charter has been adoptedwith respect to a committee composed solely of Trustees, ~~such~~the charter shall constitute a delegation bythe Trustees of the powers of the Board of Trustees necessary to carry out thepurposes, responsibilities and duties of ~~such~~a committee provided in ~~such~~the~~C~~charter or reasonably related tothose purposes, responsibilities and duties, to the extent permitted by law.

 

Section 4.3.            Meetings.  ~~In the absence of any member ofany such committee, the members thereof present at any meeting, whether or notthey constitute a quorum, may appoint another Trustee to act in the place ofsuch absent member. ~~Notice ofcommittee meetings shall be given in the same manner as notice for specialmeetings of the Board of Trustees. One-third, but not less than one, of the members of any committee shallbe present in person at any meeting of ~~such~~a committee in order to constitute a quorum for the transaction ofbusiness at ~~such~~a meeting, and theact of a majority present at a meeting at the time of ~~such~~a vote if a quorum is then present shall bethe act of ~~such~~a committee.  The Board of Trustees or, if authorized bythe Board in a committee charter or otherwise, the committee members maydesignate a chairman of any committee, and ~~such~~the chairman or, in the absence of a chairman, a majority of any ~~two members of any~~committee~~(if thereare at least two members of the committee)~~ may fix the time and place ofits meetings unless the Board shall otherwise provide.  In the absence or disqualification of anymember of any ~~such~~committee, the members thereof present at any meetingand not disqualified from voting, whether or not they constitute a quorum, mayunanimously appoint another Trustee to act at the meeting in the place of ~~such~~absent or disqualified members.

 

Each committee shall keep minutesof its proceedings and shall periodically report~~the same to the Board of Trustees at the next regularly scheduled meeting of~~its activities to the full Board of Trusteesand, except as otherwise provided by law or under the rules of theSecurities and Exchange Commission and applicable stock exchanges on which theTrust~~’~~'s shares are ~~traded~~listed, any action by ~~the~~any committee shall be subject to revision andalteration by the Board of Trustees, provided that no rights of third personsshall be affected by any such revision or alteration.

 

Section 4.4.            TelephoneMeetings. Members of a committee ~~of the Trustees~~may participate in ameeting by means of a conference telephone or similar communications equipment ~~ifall persons participating in the meeting can hear each other at the sametime.  Participation~~and participation in a meeting by these meansshall constitute presence in person at the meeting.

 

Section 4.5.            ~~Informal~~Action by WrittenConsent of Committees.  Any action required or permittedto be taken at any meeting of a committee of the Trustees may be taken withouta 

 

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meeting,if a consent in writing to such action is signed by ~~each member~~a majority of the committee and such writtenconsent 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 membershipof any committee, to fill all vacancies, to designate alternate members toreplace any absent or disqualified member or to dissolve any such committee.

 

**ARTICLE V**

** **

**OFFICERS**

** **

Section 5.1.            GeneralProvisions. The officers of the Trust shall include a president, a secretary and atreasurer and may include a chairman of the board, a vice chairman of theboard, a chief executive officer, a chief operating officer, a chief financialofficer, one or more vice presidents, one or more assistant secretaries and oneor more assistant treasurers.  Inaddition, the Trustees may from time to time appoint such other officers withsuch powers and duties as they shall deem necessary or desirable.  The officers of the Trust shall be electedannually by the Trustees at the first meeting of the Trustees held after eachannual meeting of shareholders.  If theelection of officers shall not be held at such meeting, such election shall beheld as soon thereafter as may be convenient. Each officer shall hold office until his orher successor is elected and qualifies or until his or her death, resignation or removal in the manner hereinafterprovided.  Any two or more offices, except president and vice president, may be held by the same person.  In their discretion, the Trustees may leaveunfilled any office except that of president and secretary.  Election of an officer or agent shall not ofitself create contract rights between the Trust and such officer or agent.

 

Section 5.2.            Removaland Resignation. Any officer or agent of the Trust may be removed by the Trustees if intheir judgment the best interests of the Trust would be served thereby, but ~~such~~the removal shall be without prejudice to thecontract rights, if any, of the person so removed.  Any officer of the Trust may resign at anytime by giving written notice of his or her resignationto the Trustees, the chairman of the board, the president or thesecretary.  Any resignation shall takeeffect at any~~time subsequent to the~~ time specified therein or, if thetime when it shall become effective is not specified therein, immediately uponits receipt.  The acceptance of aresignation shall not be necessary to make it effective unless otherwise statedin the resignation.  ~~Such~~A resignation shall be without prejudice tothe contract rights, if any, of the Trust.

 

Section 5.3.            Vacancies.  A vacancy in any office may befilled by the Trustees for the balance of the term.

 

Section 5.4.            ChiefExecutive Officer. The Trustees may designate a chief executive officer from among the Trustees or elected officers.  The chief executive officer shall haveresponsibility for implementation of the policies of the Trust, as determinedby the Trustees, and for the administration of the business affairs of theTrust.  In the absence of both thechairman and vice chairman of the board, the chief executive officer shallpreside over the meetings of the Board 

 

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of Trusteesat which he shall be present.  ~~The~~In the absence of a different designation, theManaging Trustees, or any of them, ~~may be designated to~~shall function as the chief executive officerof the Trust.

 

Section 5.5.            ChiefOperating Officer. The Trustees may designate a chief operating officer from among theelected officers.  Said officer will havethe responsibilities and duties as set forth by the Trustees or the chiefexecutive officer.

 

Section 5.6.            ChiefFinancial Officer. The Trustees may designate a chief financial officer from among theelected officers.  Said officer will havethe responsibilities and duties as set forth by the Trustees or the chiefexecutive officer.

 

Section 5.7.            Chairmanand Vice Chairman of the Board.  The chairman of the board, if any, ~~shallin 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 whichhe shall be present.  The chairman andthe vice chairman of the board, if any, may execute any deed, mortgage, bond,contract or other instrument, except in cases where the execution thereof shallbe expressly delegated by the Trustees or by these Bylaws to some other officeror agent of the Trust or shall be required by law to be otherwiseexecuted.  The chairman of the board~~andthe vice chairman of the board, if any, shall perform such~~other~~ dutiesas may be assigned to him, her or them bythe Trustees.  In the absence of achairman and vice chairman of the board or if none are appointed, the ManagingTrustees, or ~~either~~any of them,shall ~~perform all duties and have all power and authority assigned to thechairman under these Bylaws~~preside atmeetings of the Board of Trustees.

 

Section 5.8.            President.  The president may execute anydeed, mortgage, bond, lease, contract orother instrument, except in cases where the execution thereof shall beexpressly delegated by the Trustees or by these Bylaws to some other officer oragent of the Trust or shall be required by law to be otherwise executed~~;~~, and in general shall perform all dutiesincident to the office of president and such other duties as may be prescribedby the chief executive officer or the Trustees~~from time to time~~.

 

Section 5.9.            VicePresidents. In the absence or unavailability ofthe president~~or in the event of a vacancy in such office~~, the vicepresident (or in the event there be more than one vice president, ~~the vicepresidents in the order designated at the time of their election or, in theabsence of any designation, then in the order of their election~~any vice president) shall perform the dutiesof the president and when so acting shall have all the powers of ~~and besubject to all the restrictions upon~~the president; and shall perform suchother duties as from time to time may be assigned to him or her by the president, the chiefexecutive officer or by the Trustees. The Trustees may designate one or more vice presidents as executive vicepresidents, senior vice presidents or as vice presidents for particular areas of responsibility.

 

Section 5.10.          Secretary.  The secretary (or his or her designee) shall (a) keep the minutes of theproceedings of the shareholders, the Trustees and committees of the Trustees inone or more books provided for that purpose; (b) see that all notices areduly given in accordance with the provisions of these Bylaws or as required bylaw; (c) be custodian of the Trust records and of the seal of the Trust, if any; (d) ~~keep a register of thepost office address of each shareholder which~~

 

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~~shall befurnished to the secretary by such shareholder; (e) maintain at theprincipal office of the Trust~~maintain a share register, showing theownership and transfers of ownership of all shares of the Trust, unless atransfer agent is employed to maintain and does maintain such a share register;and (~~f~~e) in general perform suchother duties as from time to time may be assigned to ~~him~~the secretary 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 theTrust and shall keep full and accurate accounts of receipts and disbursementsin books belonging to the Trust and shall deposit all moneys and other valuableeffects in the name and to the credit of the Trust in such depositories as maybe ~~designated~~authorized by theTrustees.~~He shall disburse the funds of the Trust as may be ordered by theTrustees, taking proper vouchers for such disbursements, and shall render tothe president and Trustees, at the regular meetings of the Trustees or wheneverthey may require it, an account of all his transactions as treasurer and of thefinancial condition of the Trust.~~  The treasurer shall also have such other responsibilitiesas may be assigned to him or her by the chief executive officer or theTrustees.

 

Section 5.12.          AssistantSecretaries and Assistant Treasurers.  The assistant secretaries and assistanttreasurers, in general, shall perform such duties as shall be assigned to themby the secretary or treasurer, respectively, or by the ~~president or theTrustees.  The assistant treasurersshall, if required by the Trustees, give bonds for the faithful performance oftheir duties in such sums and with such surety or sureties as shall besatisfactory to~~chief executive officer orthe Trustees.

 

**ARTICLE VI**

**CONTRACTS, LOANS, CHECKS AND DEPOSITS**

** **

Section 6.1.            Contracts.  The Boardof Trustees may authorize any Trustee, officeror agent (including the Advisor or any officerof the Advisor) to enter into any contract or to execute and deliver anyinstrument in the name of and on behalf of the Trust and such authority may begeneral or confined to specific instances. Any agreement, deed, mortgage, lease or other document executed by ~~oneor more of the Trustees or by~~an authorized ~~person~~Trustee, officer or agent shall be valid andbinding upon the Trustees and upon the Trust when authorized or ratified byaction of the Trustees.

 

Section 6.2.            Checks andDrafts.  All checks,drafts or other orders for the payment of money, notes or other evidences ofindebtedness issued in the name of the Trust shall be signed by such officer oragent of the Trust in such manner as shall from time to time be determined bythe treasurer, the chief executive officeror~~by~~ the Trustees.

 

Section 6.3.            Deposits.  All funds of the Trust nototherwise employed shall be deposited from time to time to the credit of theTrust in such banks, trust companies or other depositories as the treasurer, the chief executive officer or the Trusteesmay designate.

 

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** **

**ARTICLE VII**

**SHARES**

** **

Section 7.1.            Certificates.  ~~At the election of the Trust, ownership~~Ownership of shares of any class of shares ofbeneficial ownership of the Trust~~, may~~shall be evidenced by certificates, or atthe election of a shareholder in book entry form.  Unless otherwise determined by the Board of Trustees, any such certificatesshall be signed by the chief executive officer, the president or a vicepresident and countersigned by the secretary or an assistant secretary or thetreasurer or an assistant treasurer and may be sealed with the seal, if any, ofthe Trust.  The signatures may be eithermanual or facsimile.  Certificates~~, ifany,~~ shall be consecutively numbered~~;~~ and if the Trust shall fromtime to time issue several classes of shares, each class may have its ownnumber series.  A certificate is validand may be issued whether or not an officer who signed it is still an officerwhen it is issued~~.  There shall befiled with each transfer agent a copy of the form of certificate, if any, as approvedby the Trustees, certified by the chairman, president or secretary, and suchform shall continue to be used unless and until the Trustees approve some otherform.  Each certificate representingshares which are restricted as to their transferability or voting powers, whichare preferred or limited as to their dividends or as to their allocable portionof the assets upon liquidation or which are redeemable at the option of theTrust, shall have a statement of such restriction, limitation, preference orredemption provision, or a summary thereof, plainly stated on thecertificate.  In lieu of such statementor summary, the Trust may set forth upon the face or back of the certificate astatement that the Trust will furnish to any shareholder, upon request andwithout charge, a full statement of such information~~.

 

Section 7.2.            Transfers.

 

(a)           Shares of theTrust shall be transferable in the manner provided by applicable law, theDeclaration of Trust and these Bylaws.  Certificates~~, if any,~~ shall be treated asnegotiable and title thereto and to the shares they represent shall betransferred by delivery thereof to the same extent as those of a Maryland stockcorporation~~.  Upon surrender to theTrust or the transfer agent of the Trust of a share certificate duly endorsedor accompanied by proper evidence of succession, assignment or authority totransfer, the Trust shall issue a new certificate to the person entitledthereto, cancel the old certificate and record the transaction upon its books~~.

 

(b)           The Trust shall be entitled to treat the holder ofrecord 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 insuch share or shares on the part of any other person, whether or not it shallhave express or other notice thereof, except as otherwise provided in theseBylaws or by the laws of the State of Maryland.

 

~~(c)           Notwithstanding the foregoing, transfers of shares ofbeneficial interest of the Trust will be subject in all respects to theDeclaration of Trust and all of the terms and conditions contained therein.~~

 

Section 7.3.            ~~Replacement Certificate~~Lost Certificates.  ~~Any~~Forshares evidenced by certificates, any officer designated by the Trusteesmay direct a new certificate to be issued in 

 

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place of any certificatepreviously issued by the Trust alleged to have been lost, stolen or destroyedupon the making of an affidavit of that fact by the person claiming the certificateto be lost, stolen or destroyed.  Whenauthorizing the issuance of a new certificate, an officer designated by theTrustees may, in ~~his~~such officer’sdiscretion and as a condition precedent to the issuance thereof, require theowner of such lost, stolen or destroyed certificate or the owner~~’~~'s legal representative to advertise the samein 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 aresult of the issuance of a new certificate.

 

Section 7.4.            Closing of Transfer Books orFixing of Record Date.

 

(a)           The Trustees may set, in advance, a record date forthe purpose of determining shareholders entitled to notice of or to vote at anymeeting of shareholders or determining shareholders entitled to receive paymentof any dividend or the allotment of any other rights, or in order to make adetermination of shareholders for any other proper purpose.

 

(b)           In lieu of fixing a record date, the Trustees may providethat the share transfer books shall be closed for a stated period but notlonger than ~~twenty (~~20~~)~~ days. If the share transfer books are closed for the purpose of determiningshareholders 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 transferbooks are not closed for the determination of shareholders, (i) the recorddate for the determination of shareholders entitled to notice of or to vote ata meeting of shareholders shall be at the close of business on the day on whichthe notice of meeting is mailed or the 30th day before the meeting, whicheveris the closer date to the meeting; and (ii) the record date for thedetermination of shareholders entitled to receive payment of a dividend or anallotment of any other rights shall be the close of business on the day onwhich the resolution of the Trustees, declaring the dividend or allotment ofrights, is adopted.

 

(d)           When a determination of shareholders entitled to voteat any meeting of shareholders has been made as provided in this section, suchdetermination shall apply to any adjournment thereof unless the Board of Trustees shall set a new record date with respectthereto.

 

Section 7.5.            Share Ledger.  The Trust shall maintain at its principaloffice or at the office of its counsel, accountants or transfer agent a shareledger containing the name and address of each shareholder and the number ofshares of each class held by such shareholder.

 

Section 7.6.            Fractional Shares; Issuance ofUnits.  The Trustees may issuefractional shares or provide for the issuance of scrip, all on such terms andunder such conditions as they may determine. Notwithstanding any other provision of the Declaration of Trust or theseBylaws, the Trustees may issue units consisting of different securities of theTrust.  Any security issued in a unitshall have the same characteristics as any identical securities issued by theTrust, except that 

 

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the Trustees may providethat for a specified period securities of the Trust issued in such unit may betransferred on the books of the Trust only in such unit.

 

**ARTICLEVIII**

**REGULATORY COMPLIANCE AND DISCLOSURE**

** **

Section 8.1.        Actions Requiring Regulatory Compliance Implicating the Trust.  If any shareholder (whether individually orconstituting a group, as determined by the Board of Trustees), by virtue ofsuch shareholder’s ownership interest in the Trust or actions taken by theshareholder affecting the Trust, triggers the application of any requirement orregulation of any federal, state, municipal or other governmental or regulatorybody on the Trust or any subsidiary (for purposes of this ARTICLE VIII, asdefined in Section 2.14.5(c)) of the Trust or any of their respectivebusinesses, assets or operations, including, without limitation, anyobligations to make or obtain a Governmental Action (as defined in Section 2.14.3),such shareholder shall promptly take all actions necessary and fully cooperatewith the Trust to ensure that such requirements or regulations are satisfiedwithout restricting, imposing additional obligations on or in any way limitingthe business, assets, operations or prospects of the Trust or any subsidiary ofthe Trust.  If the shareholder fails oris otherwise unable to promptly take such actions so to cause satisfaction ofsuch requirements or regulations, the shareholder shall promptly divest asufficient number of shares of the Trust necessary to cause the application ofsuch requirement or regulation to not apply to the Trust or any subsidiary ofthe Trust.  If the shareholder fails tocause such satisfaction or divest itself of such sufficient number of shares ofthe Trust by not later than the 10th day after triggering such requirement orregulation referred to in this Section 8.1, then any shares of the Trustbeneficially owned by such shareholder at and in excess of the level triggeringthe application of such requirement or regulation shall, to the fullest extentpermitted by law, be deemed to constitute shares held in violation of theownership limitations set forth in Article VII of the Declaration of Trustand be subject to the provisions of Article VII of the Declaration ofTrust and any actions triggering the application of such a requirement orregulation may be deemed by the Trust to be of no force or effect.  Moreover, if the shareholder who triggers theapplication of any regulation or requirement fails to satisfy the requirementsor regulations or to take curative actions within such 10 day period, the Trustmay take all other actions which the Board of Trustees deems appropriate torequire compliance or to preserve the value of the Trust’s assets; and theTrust may charge the offending shareholder for the Trust’s costs and expensesas well as any damages which may result to the Trust.

 

As an example and not as a limitation, at the time theseBylaws are being amended and restated, the Trust holds a controlling ownershipposition in a company being formed and licensed as an insurance company in theState of Indiana.  The laws of the Stateof Indiana have certain regulatory requirements for any person who seeks to control(as defined under Indiana law) a company which itself controls an insurancecompany domiciled in the State of Indiana, including by exercising proxiesrepresenting 10% or more of the Trust’s voting securities.  Accordingly, if a shareholder seeks toexercise proxies for a matter to be voted upon at a meeting of the Trust’sshareholders without having obtained any applicable approvals from the Indianainsurance regulatory authorities, such proxies representing 10% or more of theTrust’s voting securities will, subject to Section 8.3, be void and of nofurther force or effect.

 

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As a further example and not as a limitation, at the timethese Bylaws are being amended and restated, the Trust owns healthcarefacilities in various states which are subject to state regulatory andlicensing requirements in each such state. Under the licensing terms or regulatory regime of certain states withjurisdiction over the Trust, a shareholder which acquires a controlling equityposition in the Trust may be required to obtain regulatory approval or consentprior to or as a result of obtaining such ownership.  Accordingly, if a shareholder which acquiresa controlling equity position in the Trust that would require the shareholderor the Trust to obtain the consent or approval of a state authority due to thefact that the Trust owns licensed healthcare facilities in such state, and theshareholder refuses to provide the Trust with information required to besubmitted to the applicable state authority or if the state authority declinesto approve the shareholder’s ownership of the Trust, then, in either event,shares of the Trust owned by the shareholder necessary to reduce its ownershipto an amount so that the shareholder’s ownership of Trust shares would not requireit to provide any such information to, or for consent to be obtained from, thestate authority, may be deemed by the Board of Trustees to be shares held inviolation of the ownership limitation in Article VII of the Declaration ofTrust and shall be subject to the provisions of Article VII of theDeclaration of Trust.

 

Section 8.2.         Compliance With Law.  Shareholdersshall comply with all applicable requirements of federal and state laws,including all rules and regulations promulgated thereunder, in connectionwith such shareholder’s ownership interest in the Trust and all other lawswhich apply to the Trust or any subsidiary of the Trust or their respectivebusinesses, assets or operations and which require action or inaction on thepart of the shareholder.

 

Section 8.3.         Limitation on Voting Shares or Proxies. Without limiting the provisions of Section 8.1, if a shareholder(whether individually or constituting a group, as determined by the Board ofTrustees), by virtue of such shareholder’s ownership interest in the Trust orits receipt or exercise of proxies to vote shares owned by other shareholders,would not be permitted to vote the shareholder’s shares of the Trust or proxiesfor shares of the Trust in excess of a certain amount pursuant to applicablelaw (including by way of example, applicable state insurance regulations) butthe Board of Trustees determines that the excess shares or shares representedby the excess proxies are necessary to obtain a quorum, then such shareholdershall not be entitled to vote any such excess shares or proxies, and insteadsuch excess shares or proxies may, to the fullest extent permitted by law, bevoted by the Advisor (or by another person designated by the Trustees) inproportion to the total shares otherwise voted on such matter.

 

Section 8.4.         Representations, Warranties and Covenants Made to Governmental orRegulatory Bodies.  To the fullest extentpermitted by law, any representation, warranty or covenant made by ashareholder with any governmental or regulatory body in connection with suchshareholder’s interest in the Trust or any subsidiary of the Trust shall bedeemed to be simultaneously made to, for the benefit of and enforceable by, theTrust and any applicable subsidiary of the Trust.

 

Section 8.5.         Board ofTrustees’ Determinations.  The Board ofTrustees shall be empowered to make all determinations regarding theinterpretation, application, enforcement and compliance with any mattersreferred to or contemplated by this ARTICLE VIII.

 

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**ARTICLE IX****~~ARTICLE VIII~~**

**FISCAL YEAR**

** **

Section 9.1.         Fiscal Year.  The fiscal year of the Trust shall be the calendar year.

 

**ARTICLE X****~~ARTICLE IX~~**

**DIVIDENDS ANDOTHER****DISTRIBUTIONS**

** **

**~~SECTION 9.1.                     ~~**~~Authorization~~

 

Section 10.1.       Dividends and Other Distributions.  Dividends and other distributions upon theshares of beneficial interest of the Trust may be authorized and declared bythe Trustees~~, subject to the provisions of law and the Declaration of Trust~~.  Dividends and other distributions may be paidin cash, property or shares of the Trust~~, subject to the provisions of lawand the Declaration of Trust.~~

 

~~Section 9.2.           ~~~~Contingencies~~~~.~~~~  Before payment ofany dividends or other distributions, there may be set aside out of any fundsof the Trust available for dividends or other distributions such sum or sums asthe Trustees may from time to time, in their absolute discretion, think properas a reserve fund for contingencies or for any other purpose as the Trusteesshall determine to be in the best interest of the Trust, and the Trustees maymodify or abolish any such reserve in the manner in which it was created.~~

 

**ARTICLE XI****~~ARTICLE X~~**

 

**SEAL**

** **

Section 11.1.       **~~SECTION 10.1.~~**Seal.  The Trustees may authorize theadoption of a seal by the Trust.  The ~~sealshall have inscribed thereon the name of the Trust and the year of itsformation.  The~~Trustees mayauthorize one or more duplicate seals~~and provide for the custody thereof~~.

 

Section 11.2.       ~~Section 10.2.~~Affixing Seal. Whenever the Trust is permitted or required to affix its seal to adocument, it shall be sufficient to meet the requirements of any law, rule orregulation relating to a seal to place the word ~~“~~"(SEAL)~~”~~"adjacent to the signature of the person authorized to execute the document on behalfof the Trust.

 

**~~ARTICLE XI~~**

**~~INDEMNIFICATIONAND ADVANCE OF EXPENSES~~**

** **

~~To the maximum extent permitted by Maryland law in effectfrom time to time, the Trust shall indemnify (a) any Trustee, officer orshareholder or any former Trustee, officer or~~

 

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~~shareholder (including among the foregoing, for allpurposes of this Article XI and without limitation, any individual who,while a Trustee, officer or shareholder and at the express request of theTrust, serves or has served another real estate investment trust, corporation,partnership, joint venture, trust, employee benefit plan or any otherenterprise as a director, officer, shareholder, partner or trustee of such realestate investment trust, corporation, partnership, joint venture, trust,employee benefit plan or other enterprise) who has been successful, on themerits or otherwise, in the defense of a proceeding to which he was made aparty by reason of service in such capacity, against reasonable expensesincurred by him in connection with the proceeding, (b) any Trustee orofficer or any former Trustee or officer against any claim or liability towhich he may become liable or subject by reason of such status or actions insuch capacity and (c) each shareholder or former shareholder against anyclaim or liability to which he may become subject by reason of suchstatus.  In addition, the Trust shall,without requiring a preliminary determination of the ultimate entitlement toindemnification, pay or reimburse, in advance of final disposition of aproceeding, reasonable expenses incurred by a Trustee, officer or shareholderor former Trustee, officer or shareholder made a party to a proceeding byreason such status, provided that, in the case of a Trustee or officer, theTrust shall have received (i) a written affirmation by the Trustee orofficer of his good faith belief that he has met the applicable standard ofconduct necessary for indemnification by the Trust as authorized by Marylandlaw and (ii) a written undertaking by him or on his behalf to repay theamount paid or reimbursed by the Trust if it shall ultimately be determinedthat the applicable standard of conduct was not met.  The Trust may, with the approval of itsTrustees, provide such indemnification or payment or reimbursement of expensesto any Trustee, officer or shareholder or any former Trustee, officer orshareholder who served a predecessor of the Trust and to any employee or agentof the Trust or a predecessor of the Trust. Neither the amendment nor repeal of this Article, nor the adoption oramendment of any other provision of the Declaration of Trust or these Bylawsinconsistent with this Article, shall apply to or affect in any respect theapplicability of this Article with respect to any act or failure to actwhich occurred prior to such amendment, repeal or adoption.~~

 

~~Any indemnification or payment or reimbursement of theexpenses permitted by these Bylaws shall be furnished in accordance with theprocedures provided for indemnification or payment or reimbursement ofexpenses, as the case may be, under Section 2-418 of the MGCL fordirectors of Maryland corporations.  TheTrust may provide to Trustees, officers and shareholders such other and furtherindemnification or payment or reimbursement of expenses, as the case may be, tothe fullest extent permitted by the MGCL, as in effect from time to time, fordirectors of Maryland corporations.~~

 

**ARTICLE XIIWAIVER OF NOTICE**

** **

Section 12.1.       Waiver of Notice.  Whenever any notice is required to be given pursuant to the Declaration ofTrust, these Bylaws or applicable law, a waiver thereof in writing, signed bythe person or persons entitled to such notice, ora waiver by electronic transmission by the person or persons entitled to suchnotice, whether before or after the time stated therein, shall be deemedequivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meetingneed be set forth in the waiver of notice orwaiver by electronic transmission, unless 

 

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specifically required bystatute.  The attendance of any person atany meeting shall constitute a waiver of notice of such meeting, except wheresuch person attends a meeting for the express purpose of objecting to thetransaction of any business on the ground that the meeting is not lawfullycalled or convened.

 

**~~ARTICLE XIII     ~~**

**~~THEADVISOR~~**

** **

**~~SECTION 13.1.           ~~**~~Employmentof Advisor~~~~. The Trustees are not and shall not be required personally to conduct thebusiness of the Trust, and the Trustees shall have the power to appoint, employor contract with any person (including one or more of themselves or anycorporation, partnership, or trust in which one or more of them may beTrustees, officers, shareholders, partners or trustees) as the Trustees maydeem necessary or proper for the transaction of the business of the Trust.  The Trustees may therefore employ or contractwith such person (herein referred to as the “Advisor”) and may grant ordelegate such authority to the Advisor as the Trustees may in their solediscretion deem necessary or desirable without regard to whether such authorityis normally granted or delegated by boards of trustees or boards of directorsof business corporations.  The Advisorshall be required to use its best efforts to supervise the operation of theTrust in a manner consistent with the investment policies and objectives of theTrust as established from time to time by the Trustees.~~

 

~~The Trustees shall have the power to determine the terms andcompensation of the Advisor or any other person whom it may cause the Trust toemploy or with whom it may cause the Trust to contract for advisoryservices.  The Trustees may exercisebroad discretion in allowing the Advisor to administer and regulate theoperations of the Trust, to act as agent for the Trust, to execute documents onbehalf of the Trustees and to make executive decisions which conform to generalpolicies and general principles previously established by the Trustees.~~

 

~~Section 13.2.          Other Activities of Advisor.  The Advisor shall not be required toadminister the Trust as its sole and exclusive function and may have otherbusiness interests and may engage in other activities similar or in addition tothose relating to the Trust, including the rendering of advice or services ofany kind to other investors or any other persons (including other real estateinvestment trusts) and the management of other investments.  The Trustees may request the Advisor toengage in certain other activities which complement the Trust’s investments,and the Advisor may receive compensation or commissions therefor from the Trustor other persons.~~

 

~~Neither the Advisor nor any affiliate of the Advisor shallbe obligated to present any particular investment opportunities to the Trust,even if such opportunities are of a character such that, if presented to theTrust, they could be taken by the Trust, and, subject to the foregoing, each ofthem shall be protected in taking for its own account or recommending to othersany such particular investment opportunity.~~

 

~~Notwithstanding the foregoing, the Advisor shall be requiredto use its best efforts to present the Trust with a continuing and suitableprogram consistent with the investment policies~~

 

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~~and objectives of the Trust and with investmentswhich are representative of, comparable with and on similar terms asinvestments being made by Affiliates of the Advisor, or by the Advisor for itsown account or for the account of any person for whom the Advisor is providingadvisory services.  In addition, theAdvisor shall be required to, upon the request of any Trustee, promptly furnishthe Trustees with such information on a confidential basis as to any investmentswithin the investment policies of the Trust made by Affiliates of the Advisoror by the Advisor for its own account or for the account of any person for whomthe Advisor is providing advisory services.~~

 

**ARTICLE XIII****~~ARTICLE XIV~~**

** **

**AMENDMENT OFBYLAWS**

** **

Section 13.1.       Amendment of Bylaws.  Except for any change for which~~the Declaration or~~ these Bylawsrequires approval by more than a majority vote of the Trustees, these Bylawsmay be amended or repealed or new or additional Bylaws may be adopted only by thevote or written consent of a majority of the Trustees.

 

**ARTICLE XIV****~~ARTICLE XV~~**

 

**MISCELLANEOUS**

** **

Section 14.1.       **~~SECTION 15.1.~~**Referencesto Declaration of Trust.  All references to the Declaration of Trustshall include any amendments thereto.

 

Section 14.2.       Costs and Expenses.  In addition to,and as further clarification of each shareholder’s obligation to indemnify andhold the Trust harmless from and against all costs, expenses, penalties, finesand other amounts, including, without limitation, attorneys’ and otherprofessional fees, whether third party or internal, arising from suchshareholder’s violation of any provision of the Declaration of Trust or theseBylaws pursuant to Section 8.7 of the Declaration of Trust, to the fullestextent permitted by law, each shareholder will be liable to the Trust for, andindemnify and hold harmless the Trust (and any subsidiaries or affiliatesthereof) from and against, all costs, expenses, penalties, fines or otheramounts, including, without limitation, reasonable attorneys’ and otherprofessional fees, whether third party or internal, arising from suchshareholder’s breach of any provision of these Bylaws or the Declaration ofTrust or any action against the Trust in which such shareholder is not theprevailing party, and shall pay such amounts on demand, together with intereston such amounts, which interest will accrue at the lesser of the Trust’shighest marginal borrowing rate, per annum compounded, and the maximum amountpermitted by law, from the date such costs or the like are incurred until thereceipt of payment.

 

Section 14.3.       Ratification.  The Board of Trusteesor the shareholders may ratify and make binding on the Trust any action orinaction by the Trust or its officers to the extent that the Board of Trusteesor the shareholders could have originally authorized the matter.  Moreover, any action or inaction questionedin any shareholder’s derivative proceeding or any other proceeding on theground of lack of authority, defective or irregular execution, adverse interestof a Trustee, officer or shareholder, non-disclosure, miscomputation, theapplication of improper principles or practices of accounting, or otherwise,may be ratified, before or after judgment, by the Board of 

 

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Trustees or by the shareholders and, if so ratified, shallhave the same force and effect as if the questioned action or inaction had beenoriginally duly authorized, and such ratification shall be binding upon theTrust and its shareholders and shall constitute a bar to any claim or executionof any judgment in respect of such questioned action or inaction.

 

Section 14.4.       Ambiguity.  In the case of anambiguity in the application of any provision of these Bylaws or any definitioncontained in these Bylaws, the Board of Trustees shall have the sole power todetermine the application of such provisions with respect to any situationbased on the facts known to it and such determination shall be final andbinding unless determined by a court of competent jurisdiction to have beenmade in bad faith.

 

Section 14.5.       ~~Section 15.2.~~Inspection of Bylaws.  The Trustees shall keep at the principaloffice for the transaction of business of the Trust the original or a copy ofthe Bylaws as amended or otherwise altered to date, certified by the secretary,which shall be open to inspection by the shareholders at all reasonable timesduring office hours.

 

Section 14.6.       ~~Section 15.3.~~Election to be Subject to Part of Title 3, Subtitle 8.  Notwithstanding any otherprovision contained in the Declaration of Trust or these Bylaws, the Trusthereby elects to be subject to Section 3-804(b) and (c) of Title3, Subtitle 8 of the ~~Corporations and Associations Article of theAnnotated Code of~~Maryland General CorporationLaw (or any successor statute).  ThisSection ~~15.3~~14.6 only may berepealed, in whole or in part, by a subsequent amendment to these Bylaws.

 

Section 14.7.       Special Voting Provisions relating to Control Shares.  Notwithstanding any other provision containedherein or in the Declaration of Trust or these Bylaws, Title 3, Subtitle 7 ofthe Maryland General Corporation Law (or any successor statute) shall not applyto any acquisition by any person of shares of beneficial interest of the Trust.  This section may be repealed, in whole or inpart, at any time, whether before or after an acquisition of control sharesand, upon such repeal, may, to the extent provided by any successor bylaw,apply to any prior or subsequent control share acquisition.

 

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