exv4w2



 







Exhibit 4.2




ARCHSTONE-SMITH OPERATING TRUST

BYLAWS




ARTICLE I. MEETINGS OF SHAREHOLDERS




     Section 1. Place. All meetings of shareholders of Archstone-Smith Operating Trust (the
“Trust”) shall be held at the principal office of the Trust or at such other place within the
United States as shall be stated in the notice of the meeting. The shares of beneficial interest
of the Trust are referred to in these Bylaws as “Units” and the shareholders are referred to herein
as “Unitholders,” in conformity with the Amended and Restated Declaration of Trust of the Trust.



     Section 2. Annual Meetings. Failure to hold an annual meeting does not invalidate the Trust’s
existence or affect any otherwise valid acts of the Trust.



     Section 3. Special Meetings. The Chairman of the Board, President, Chief Executive Officer or
Board of Trustees may call a special meeting of the Unitholders. Requests by Unitholders for
special meetings shall state the purpose of such meeting and the matters proposed to be acted on at
such meeting. The Secretary shall inform the requesting Unitholders of the reasonably estimated
cost of preparing and mailing notice of the meeting and, upon payment to the Trust by such
Unitholders of such costs, the Secretary shall give notice of the meeting. Unless requested by the
Unitholders entitled to cast a majority of the votes entitled to be cast at such meeting, a special
meeting need not be called to consider any matter which is substantially the same as a matter voted
on at any meeting of Unitholders held during the preceding twelve months. The Board has the sole
power to fix (i) the record date for determining Unitholders entitled to notice of and to vote at
the special meeting and (ii) the date, time and place of the special meeting.



     Section 4. Notice. Notice of any meeting may be given in any manner permitted by Maryland
law. If mailed, notices of meetings of Unitholders shall be deemed to be given when deposited in
the United States mail addressed to the Unitholder at his or her post office address as it appears
on the records of the Trust, with postage thereon prepaid.



     Section 5. Scope of Notice. Any business of the Trust may be transacted at an annual meeting
of Unitholders without being specifically designated in the notice, except such business as is
required by any statute to be stated in such notice. No business shall be transacted at a special
meeting of Unitholders except as specifically designated in the notice.



     Section 6. Waiver of Notice. Whenever any notice of a meeting of Unitholders is required to be
given pursuant to the Trust’s Declaration of Trust (as amended, supplemented or restated from time
to time, the “Declaration of Trust”) or these Bylaws or pursuant to applicable law, a waiver
thereof in writing, signed by the Unitholder or Unitholders entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of
notice, unless specifically required by statute. The attendance of any Unitholder at any meeting
shall constitute a waiver of notice of such meeting.



     Section 7. Organization. At every meeting of Unitholders, the Chairman of the Board, if there
is one (or any Co-Chairman of the Board, if there is more than one), shall conduct



 









 







the meeting or, in the case of vacancy in office or absence of the Chairman of the Board (or
all Co-Chairmen of the Board), one of the following officers present shall conduct the meeting in
the order stated: the President, the Managing Directors in their order of rank and seniority, the
Vice Presidents in their order of rank and seniority, or a chairman chosen by the Unitholders
entitled to cast a majority of the votes which all Unitholders present in person or by proxy are
entitled to cast, shall act as chairman, and the Secretary, or, in his or her absence, an Assistant
Secretary, or in the absence of both the Secretary and Assistant Secretaries, a person appointed by
the chairman shall act as secretary. At any Unitholders’ meeting, the chairman shall determine the
construction or interpretation of these Bylaws, or any part thereof, and the ruling of the chairman
shall be final.



     Section 8. Quorum. Unless otherwise provided in the Declaration of Trust or these Bylaws,
with respect to any matter to be considered at any meeting of Unitholders, the presence in person
or by proxy of Unitholders entitled to cast a majority of all the votes entitled to be cast with
respect to such matter shall constitute a quorum. If a quorum is not present at any meeting of the
Unitholders, the Unitholders entitled to vote at such meeting, present in person or by proxy, shall
have the power to adjourn such meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at such meeting. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified. A plurality of all the votes cast by Unitholders
entitled to vote with respect to the election of Trustees at a meeting duly called at which a
quorum is present shall be sufficient to elect a Trustee.



     Section 9. Proxies. A Unitholder may cast the votes entitled to be cast by the Units of the
Trust owned of record by him, either in person or by proxy in any manner authorized by law, by the
Unitholder or by his or her duly authorized attorney in fact. Such proxy shall be filed with the
Secretary before or at the time of the meeting. A Unitholder may authorize another person to act as
proxy by transmitting, or authorizing the transmission of, an authorization by telegram, cablegram,
datagram, electronic mail or any other electronic or telephonic means to the person authorized to
act as proxy or to any other person authorized to receive the proxy authorization on behalf of the
person authorized to act as proxy, including a proxy solicitation firm or proxy support service
organization. No proxy shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.



     Section 10. Voting of Units by Certain Holders.



     (a) Units Held by an Entity. Units registered in the name of a corporation, partnership,
trust or other entity, if entitled to be voted, may be voted by the president or a vice president,
a general partner or trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote such Units pursuant
to a bylaw or a resolution of the governing body of such corporation or other entity or agreement
of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement,
in which case such person may vote such Units. Any director or other fiduciary may vote Units
registered in his or her name as such fiduciary, either in person or by proxy.



     (b) Units Held by Certain Persons. Units registered in the name of a person adjudged
incompetent may be voted and all rights incident thereto may be exercised only by his



 









 







guardian, in person or by proxy. Units registered in the name of a deceased person may be
voted and all rights incident thereto may be exercised only by his executor or administrator, in
person or by proxy. Units registered in the name of a minor may be voted and all rights incident
thereto may be exercised by his guardian, in person or by proxy, or in the absence of such
representation by his guardian, by the minor, in person or by proxy, whether or not the Trust has
notice, actual or constructive, of the minority or the appointment of a guardian, and whether or
not a guardian has in fact been appointed.



     (c) Units Held by Two or More Persons. Units registered in the names of two or more persons
shall be voted or represented in accordance with the vote or consent of the majority of the persons
in whose names the Units stand. If only one such person is present in person or by proxy, he or she
may vote all the Units, and all the Units standing in the names of such persons are represented for
the purpose of determining a quorum. This procedure also applies to the voting of Units by two or
more administrators, executors, trustees or other fiduciaries, unless the instrument or order of
court appointing them otherwise directs.



     (d) Units Held by the Trust. Units of the Trust directly or indirectly owned by it shall not
be voted at any meeting and shall not be counted in determining the total number of outstanding
Units entitled to be voted at any given time, unless they are held by it in a fiduciary capacity,
in which case they may be voted and shall be counted in determining the total number of outstanding
Units at any given time.



     (e) Certifications of Beneficial Ownership. The Board of Trustees (the “Board”) may adopt by
resolution a procedure by which a Unitholder may certify in writing to the Trust that any Units
registered in the name of the Unitholder are held for the account of a specified person other than
the Unitholder. The resolution shall set forth: the class of Unitholders who may make the
certification; the purpose for which the certification may be made; the form of certification; the
information to be contained in it; if the certification is with respect to a record date or closing
of the Unit transfer books, the time after the record date or closing of the Unit transfer books
within which the certification must be received by the Trust; and any other provisions with respect
to the procedure which the Board considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as, for the purposes set
forth in the certification, the Unitholder of record of the specified Units in place of the
Unitholder who makes the certification.



     Section 11. Inspectors. At any meeting of Unitholders, the chairman of the meeting may, or
upon the request of any Unitholder shall, appoint one or more persons as inspectors for such
meeting. Such inspectors shall ascertain and report the number of Units represented at the meeting
based on their determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and voting with
impartiality and fairness to all the Unitholders. Each report of an inspector shall be in writing
and signed by him or by a majority of them if there is more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be the report of the
inspectors. The report of the inspector or inspectors on the number of Units represented at the
meeting and the results of the voting shall be prima facie evidence thereof.



 









 





     Section 12. Action Without Meetings. Any action required or permitted to be taken at a meeting
of Unitholders may be taken without a meeting if there is filed with the records of Unitholders’
meetings a unanimous written consent which sets forth the action and is signed by each Unitholder
entitled to vote on the matter.



     Section 13. Nominations and Proposals by Unitholders.



     (a) Annual Meetings of Unitholders.



          (1) Nominations of persons for election to the Board and the proposal of business to be
considered by the Unitholders may be made at an annual meeting of Unitholders (i) pursuant to the
Trust’s notice of a meeting, (ii) by or at the direction of the Board or (iii) by any Unitholder of
the Trust who was a Unitholder of record at the time of the giving of notice provided for in this
Section 12(a) and at the time of the annual meeting, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section 12(a).




          (2) For nominations or other business to be properly brought before an annual meeting by a
Unitholder pursuant to clause (iii) of paragraph (a)(1) of this Section 12, the Unitholder must
have given timely notice thereof in writing to the Secretary and such nomination or other business
must otherwise be a proper matter for action by Unitholders. To be timely, a Unitholder’s notice
shall be delivered to the Secretary at the principal executive offices of the Trust not less than
90 days nor more than 120 days prior to the first anniversary of the date of the proxy statement
released to Unitholders in connection with the preceding year’s annual meeting of Unitholders;
provided, however, that if the date of the annual meeting is advanced by more than 30 days or
delayed by more than 60 days from such anniversary of the preceding year’s annual meeting, notice
by the Unitholder to be timely must be so delivered (x) not more than 120 days prior to the first
anniversary of the date of the proxy statement released to Unitholders in connection with the
preceding year’s annual meeting nor less than 90 days prior to the first anniversary of the date of
the proxy statement released to Unitholders in connection with the preceding year’s annual meeting
or (y) not later than the close of business on the tenth day following the day on which public
announcement of the date of such meeting is first made by the Trust. Such Unitholder’s notice shall
set forth (i) as to each person whom the Unitholder proposes to nominate for election or reelection
as a Trustee all information relating to such person which is required to be disclosed in
solicitations of proxies for election of Trustees, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(including such person’s written consent to being named in the proxy statement as a nominee and to
serving as a Trustee if elected); (ii) as to any other business which the Unitholder proposes to
bring before the meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any material interest in such
business of such Unitholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the Unitholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (x) the name and address of such Unitholder, as they
appear on the Trust’s books, and of such beneficial owner, (y) the number of Units of each class of
the Trust which are owned beneficially and of record by such Unitholder and such beneficial owner
and (z) in the case of a nomination, (A) a description of all arrangements or understandings
between such Unitholder and each proposed nominee and any other person or persons (including their
names) pursuant to which the

 









 








nomination(s) are to be made by such Unitholder, (B) a representation that such Unitholder
intends to appear in person or by proxy at the meeting, if there is a meeting, to nominate the
persons named in its notice and (C) any other information relating to such Unitholder that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of Trustees pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder.




          (3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 12 to
the contrary, if the number of Trustees to be elected to the Board is increased and there is no
public announcement by the Trust naming all of the nominees for Trustee or specifying the size of
the increased Board at least 100 days prior to the first anniversary of the date of the proxy
statement released to Unitholders in connection with the preceding year’s annual meeting of
Unitholders, a Unitholder’s notice required by this Section 12(a) shall also be considered timely,
but only with respect to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Trust not later than the close
of business on the tenth day following the day on which such public announcement is first made by
the Trust.




     (b) Special Meetings of Unitholders. Only such business shall be conducted at a special
meeting of Unitholders as shall have been brought before the meeting pursuant to the Trust’s notice
of meeting. Nominations of persons for election to the Board may be made at a special meeting of
Unitholders at which Trustees are to be elected (i) pursuant to the Trust’s notice of meeting, (ii)
by or at the direction of the Board or (iii) provided that the Board has determined that Trustees
shall or may be elected at such special meeting, by any Unitholder of the Trust who was a
Unitholder of record both at the time of giving of notice provided for in this Section 12(b) and at
the time of the special meeting, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 12(b). If the Trust calls a special meeting of
Unitholders for the purpose of electing one or more Trustees to the Board, any such Unitholder may
nominate a person or persons (as the case may be) for election to such position as specified in the
Trust’s notice of meeting, if the Unitholder’s notice containing the information required by
paragraph (a)(2) of this Section 12 shall be delivered to the Secretary at the principal executive
offices of the Trust (A) not more than 120 days prior to such special meeting nor less than 90 days
prior to such special meeting or (B) not later than the close of business on the tenth day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board to be elected at such meeting.



     (c) General.



          (1) Only such persons who are nominated in accordance with the procedures set forth in this
Section 12 shall be eligible to serve as Trustees and only such business shall be conducted at a
meeting of Unitholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 12. The chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought before the meeting was
made or proposed in accordance with the procedures set forth in this Section 12 and, if any
proposed nomination or business is not in compliance with this Section 12, to declare that such
nomination or proposal shall be disregarded.




 









 








          (2) For purposes of this Section 12, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable news service or in a
document publicly filed by the Trust with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.




          (3) Notwithstanding the foregoing provisions of this Section 12, a Unitholder shall also
comply with all applicable requirements of Maryland law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 12. Nothing in this
Section 12 shall be deemed to affect any rights of Unitholders to request inclusion of, nor any
rights of the Trust to omit, proposals in the Trust’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act.




     Section 14. Voting by Ballot. Voting on any question or in any election may be by voice
unless the presiding officer shall order or any Unitholder shall demand that voting be by ballot.



ARTICLE II. TRUSTEES




     Section 1. Annual And Regular Meetings. An annual meeting of the Board shall be held
immediately after and at the same place as the annual meeting of Unitholders, no notice other than
this bylaw being necessary. The Board may provide, by resolution, the time and place, either within
or without the State of Maryland, for the holding of regular meetings of the Board without other
notice than such resolution.



     Section 2. Special Meetings. Special meetings of the Board may be called by or at the request
of the Chairman of the Board (or any Co-Chairman of the Board, if there is more than one), the
Chief Executive Officer or by a majority of the Trustees then in office. The person or persons
authorized to call special meetings of the Board may fix any place, either within or without the
State of Maryland, as the place for holding any special meeting of the Board called by them.



     Section 3. Notice. Notice of any special meeting of the Board shall be delivered personally or
by telephone, facsimile transmission, United States mail or courier to each Trustee at his or her
business or residence address. Notice by personal delivery, by telephone or a facsimile
transmission shall be given at least two days prior to the meeting. Notice by mail shall be given
at least five days prior to the meeting and shall be deemed to be given when deposited in the
United States mail properly addressed, with postage thereon prepaid. Telephone notice shall be
deemed to be given when the Trustee is personally given such notice in a telephone call to which he
is a party. Facsimile transmission notice shall be deemed to be given upon completion of the
transmission of the message to the number given to the Trust by the Trustee and receipt of a
completed transmission indicating receipt. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board need be stated in the notice,
unless specifically required by statute or these Bylaws.



     Section 4. Waiver of Notice. Whenever any notice of a meeting of the Board or any committee
thereof is required to be given pursuant to the Declaration of Trust or these Bylaws or pursuant to
applicable law, a waiver thereof in writing, signed by the Trustee or Trustees entitled



 









 







to such notice, whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by statute. The attendance
of any Trustee at any meeting shall constitute a waiver of notice of such meeting.



     Section 5. Organization. A majority of the Board may designate or elect a Trustee to preside
at Board meetings. In the absence of such designation or election, the Chairman of the Board (or
any Co-Chairman of the Board, if there is more than one) or the Chief Executive Officer shall
preside at Board meetings; in his absence, the Trustees present at each meeting shall elect one of
the Trustees present as chairman. All rules of conduct adopted and used at Board meetings shall be
determined by the chairman, whose ruling on all procedural matters shall be final.



     Section 6. Quorum. A majority of the Trustees shall constitute a quorum for the transaction
of business at any meeting of the Board of Trustees, provided that if less than a quorum of
Trustees is present at a meeting, a majority of the Trustees present may adjourn the meeting from
time to time without further notice, and further provided that if, pursuant to the Declaration of
Trust or these Bylaws, the vote of a majority of a particular group of Trustees is required for
action, a quorum must also include a majority of such group. The Trustees present at a meeting
which has been duly called and convened may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Trustees to leave less than a quorum.



     Section 7. Voting at Meetings. Voting at Board meetings may be conducted orally, by show of
hands, or, if requested by any Trustee, by written ballot. The results of all voting shall be
recorded by the Secretary in the minute book.



     Section 8. Telephone Meetings. Trustees may participate in a meeting by means of a conference
telephone or similar communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall constitute presence in
person at the meeting.



     Section 9. Compensation. Trustees shall not receive any stated salary for their services as
Trustees but, by resolution of the Board, may receive fixed sums per year and/or per meeting and/or
per visit to real property owned or to be acquired by the Trust and for any service or activity
they performed or engaged in as Trustees. Trustees may be reimbursed for expenses of attendance, if
any, at each annual, regular or special meeting of the Board or of any committee thereof and for
their expenses, if any, in connection with each property visit and any other service or activity
they performed or engaged in as Trustees; but nothing herein contained shall be construed to
preclude any Trustees from serving the Trust in any other capacity and receiving compensation
therefor.



     Section 10. Distributions. Dividends and other distributions upon the Units of beneficial
interest of the Trust may be authorized and declared by the Trustees, subject to the provisions of
law and the Declaration of Trust. In determining the amount of any distribution, the Trustees may
establish, modify, and reverse such reserves for contingencies (including, without limitation, for
equalizing distributions, for property repair and maintenance, or for such



 









 







other purposes as the Trustees shall determine to be appropriate) as they shall determine in
good faith to be appropriate.



     Section 11. Investment Policy. Subject to the provisions of the Declaration of Trust, the
Board may from time to time adopt, amend, revise or terminate any policy or policies with respect
to investments by the Trust as it shall deem appropriate in its sole discretion.



     Section 12. Loss of Deposits. No Trustee shall be liable for any loss which may occur by
reason of the failure of the bank, trust company, savings and loan association or other institution
with whom moneys or Units have been deposited.



     Section 13. Surety Bonds. Unless required by law, no Trustee shall be obligated to give any
bond or surety or other security for the performance of any of his or her duties.



     Section 14. Reliance. Each Trustee, officer, employee and agent of the Trust shall, in the
performance of his or her duties with respect to the Trust, be fully justified and protected with
regard to any act or failure to act in reliance in good faith on the books of account or other
records of the Trust, on an opinion of counsel or on reports made to the Trust by any of its
officers or employees or by the adviser, accountants, appraisers or other experts or consultants
selected by the Board or officers of the Trust, regardless of whether such counsel or expert may
also be a Trustee.



     Section 15. Certain Rights of Trustees, Officers, Employees And Agents. The Trustees shall
have no responsibility to devote their full time to the affairs of the Trust. Any Trustee or
officer, employee or agent of the Trust, in his or her personal capacity or in a capacity as an
affiliate, employee or agent of any other person, or otherwise, may have business interests and
engage in business activities similar to or in addition to or in competition with those of or
relating to the Trust.



     Section 16. Duties of Trustees. Except to the extent that the Trustees are subject to a
different standard under Maryland law or the Declaration of Trust, the Trustees shall perform their
duties as Trustees or members of committees of Trustees in accordance with Section 2-405.1 of the
Maryland General Corporation Law and may rely on information, opinions, reports, or statements as
contemplated by Section 2-405.1.



     Section 17. Presumption of Assent. A Trustee who is present at a meeting of the Board of
Trustees at which action on any matter is taken on behalf of the Trust shall be presumed to have
assented to such action unless such Trustee announces his or her dissent at the meeting and (a)
such Trustee’s dissent is entered into the minutes of the meeting, (b) such Trustee files his or
her written dissent to such action with the secretary of the meeting before adjournment thereof, or
(c) such Trustee forwards his or her written dissent, by certified mail, return receipt requested,
bearing a postmark from the United States Postal Service, to the secretary of the meeting or the
Secretary of the Trust within 24 hours after the meeting is adjourned. Such right to dissent shall
not apply to a trustee who voted in favor of such action or failed to make his or her dissent known
at the meeting.



 









 





ARTICLE III. COMMITTEES




     Section 1. Number, Tenure And Qualifications. The Board may appoint from among its members an
Executive Committee, an Audit Committee, an Executive Compensation Committee, an Investment
Committee and other committees, composed of one or more Trustees, to serve at the pleasure of the
Board.



     Section 2. Meetings. Notice of committee meetings shall be given in the same manner as notice
for special meetings of the Board. A majority of the members of the committee shall constitute a
quorum for the transaction of business at any meeting of the committee. The Board may designate a
chairman of any committee and such chairman or any two members of any committee may fix the time
and place of its meeting unless the Board shall otherwise provide. In the absence of any member of
any such committee, the members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another Trustee to act in the place of such absent member. Each committee shall
keep minutes of its proceedings.



     Section 3. Telephone Meetings. Members of a committee of the Board may participate in a
meeting by means of a conference telephone or similar communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation in a meeting by
these means shall constitute presence in person at the meeting.



     Section 4. Informal Action by Committees. Any action required or permitted to be taken at any
meeting of a committee of the Board may be taken without a meeting, if a consent in writing to such
action is signed by each member of the committee and such written consent is filed with the minutes
of proceedings of such committee.



     Section 5. Vacancies. Subject to the provisions hereof, the Board shall have the power at any
time to change the membership of any committee, to fill all vacancies, to designate alternate
members to replace any absent or disqualified member or to dissolve any such committee.



ARTICLE IV. OFFICERS




     Section 1. General Provisions. The officers of the Trust shall be elected annually by the
Board at the first meeting of the Board held after each annual meeting of Unitholders, except that
the Chairman of the Board (or any Co-Chairman of the Board, if there is more than one) or the Chief
Executive Officer may appoint a President, a Chief Operating Officer, a Chief Financial Officer, a
Treasurer, a President of each division of the Trust, a Chairman of each division of the Trust, and
one or more Managing Directors, Vice Presidents, Assistant Secretaries and Assistant Treasurers, or
such other officers as the Board, the Chairman of the Board or the Chief Executive Officer shall
deem proper. If the election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as may be convenient. Each officer shall hold office until his or her
successor is elected and qualifies or until his or her death, resignation or removal in the manner
hereinafter provided. Any two or more offices may be held by the same person. In its discretion,
the Board may leave unfilled any office except that of Chairman of the Board (or Co-Chairman of the
Board, if there is more than one) and Secretary. Any two offices except President and Vice
President may be held concurrently by the same person.



 









 





     Section 2. Resignation. Any officer of the Trust may resign at any time by giving written
notice of his or her resignation to the Board, the Chairman of the Board (or any Co-Chairman of the
Board, if there is more than one), the Chief Executive Officer or the Secretary. Any resignation
shall take effect at any time subsequent to the time specified therein or, if the time when it
shall become effective is not specified therein, immediately upon its receipt. The acceptance of a
resignation shall not be necessary to make it effective unless otherwise stated in the resignation.
Such resignation shall be without prejudice to the contract rights, if any, of the Trust.



     Section 3. Vacancies. A vacancy in any office may be filled by the Board for the balance of
the term.



     Section 4. Chairman of The Board. The Chairman of the Board (or the Co-Chairmen of the Board
in the order of their election, if there is more than one) shall also serve as the Chief Executive
Officer and, as such, shall have general supervision, direction and control of the business and
affairs of the Trust, subject to the control of the Board, shall preside at meetings of Unitholders
and shall have such other functions, authority and duties as customarily appertain to the office of
the chief executive of a business corporation or as may be prescribed by the Board.



     Section 5. Chief Executive Officer. The Chief Executive Officer, if elected, shall be the
chief executive officer of the Trust and, as such, shall have general supervision, direction and
control of the business and affairs of the Trust, subject to the control of the Board, shall
preside at meetings of Unitholders and shall have such other functions, authority and duties as
customarily appertain to the office of the chief executive of a business corporation or as may be
prescribed by the Board or the Chairman of the Board.



     Section 6. President. The President shall have such functions, authority and duties as may be
prescribed by the Board or the Chairman of the Board (or any Co-Chairman of the Board, if there is
more than one).



     Section 7. Managing Director. The Managing Director (or the Managing Directors, if there is
more than one), shall have such functions, authority and duties, and shall have such additional
descriptive designations in his or her title (if any), as may be prescribed by the Board, the
Chairman of the Board (or any Co-Chairman of the Board, if there is more than one), the Chief
Executive Officer or the President.



     Section 8. Chief Operating Officer. The Chief Operating Officer shall have such functions,
authority and duties, and have such additional descriptive designations in his or her title (if
any), as may be prescribed by the Board, the Chairman of the Board (or any Co-Chairman of the
Board, if there is more than one), the Chief Executive Officer or the President.



     Section 9. Chief Financial Officer. The Chief Financial Officer shall have the custody of the
funds and securities of the Trust and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Trust and shall deposit all moneys and other valuable
effects in the name and to the credit of the Trust in such depositories as may be designated by the
Board and shall perform such other duties as may be prescribed by the Board,



 









 







the Chairman of the Board (or any Co-Chairman of the Board, if there is more than one), the
Chief Executive Officer or the President.



     Section 10. President of a Division. Each President of a division of the Trust shall have
such functions, authority and duties, and shall have such additional descriptive designations in
his or her title (if any), as may be prescribed by the Board, the Chairman of the Board (or any
Co-Chairman of the Board, if there is more than one), the Chief Executive Officer or the President.



     Section 11. Chairman of a Division. Each Chairman of a division of the Trust shall have such
functions, authority and duties, and shall have such additional descriptive designations in his or
her title (if any), as may be prescribed by the Board, the Chairman of the Board (or any
Co-Chairman of the Board, if there is more than one), the Chief Executive Officer or the President.



     Section 12. Vice Presidents. Each Vice President shall have such functions, authority and
duties, and have such additional descriptive designations in his or her title (if any), as may be
prescribed by the Board, the Chairman of the Board (or any Co-Chairman of the Board, if there is
more than one), the Chief Executive Officer, the President or any Managing Director.



     Section 13. Secretary. The Secretary shall keep a record of all proceedings of the Unitholders
of the Trust and of the Board and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice, if any, of all meetings of the
Unitholders and shall perform such other duties as may be prescribed by the Board, the Chairman of
the Board (or any Co-Chairman of the Board, if there is more than one), the Chief Executive Officer
or the President. The Secretary shall have custody of the corporate seal of the Trust and the
Secretary or, in the absence of the Secretary, any Assistant Secretary shall have authority to
affix the same to any instrument requiring it and when so affixed it may be attested by the
signature of the Secretary or any Assistant Secretary. The Board may give general authority to any
other officer to affix the seal of the Trust and to attest such affixing of the seal.



     Section 14. Assistant Secretary. The Assistant Secretary, or if there is more than one, the
Assistant Secretaries in the order determined by the Board (or if there is no such determination,
then in the order of their election), shall, in the absence of the Secretary or if the Secretary is
unable or refuses to act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties as may from time to time be prescribed by the Board, the Chairman of the
Board (or any Co-Chairman of the Board, if there is more than one), the Chief Executive Officer,
the President or the Secretary.



     Section 15. Treasurer. The Treasurer shall have such functions, authority and duties, and
have such additional descriptive designations in his or her title (if any), as may be prescribed by
the Board, the Chairman of the Board (or any Co-Chairman of the Board, if there is more than one),
the Chief Executive Officer or the President.



     Section 16. Assistant Treasurer. The Assistant Treasurer, or if there is more than one, the
Assistant Treasurers in the order determined by the Board (or if there is no such



 









 







determination, then in the order of their election), shall, in the absence of the Treasurer or
if the Treasurer is unable or refuses to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties as may from time to time be prescribed by the Board,
the Chairman of the Board (or any Co-Chairman of the Board, if there is more than one), the Chief
Executive Officer, the President or the Treasurer.



     Section 17. Salaries. The salaries and other compensation of the officers shall be fixed from
time to time by the Board and no officer shall be prevented from receiving such salary or other
compensation by reason of the fact that he or she is also a Trustee.



     Section 18. Execution of Documents. A person who holds more than one office in the Trust may
not act in more than one capacity to execute, acknowledge or verify an instrument required by law
to be executed, acknowledged or verified by more than one officer.



     Section 19. Bonds. The Board may require any officer, agent or employee of the Trust to give
a bond to the Trust, conditioned on the faithful discharge of his or her duties, with one or more
sureties and in such amount as may be satisfactory to the Board.



ARTICLE V. INDEMNIFICATION




     Section 1. Procedure. Any indemnification, or payment of expenses in advance of the final
disposition of any proceeding, shall be made promptly, and in any event within 60 days, upon the
written request of the Trustee or officer entitled to seek indemnification (the “Indemnified
Party”). The right to indemnification and advances hereunder shall be enforceable by the
Indemnified Party in any court of competent jurisdiction, if (i) the Trust denies such request, in
whole or in part, or (ii) no disposition thereof is made within 60 days. The Indemnified Party’s
costs and expenses incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be reimbursed by the Trust. It
shall be a defense to any action for advance of expenses that (a) a determination has been made
that the facts then known to those making the determination would preclude indemnification or (b)
the Trust has not received both (i) an undertaking as required by law to repay such advances if it
shall ultimately be determined that the standard of conduct has not been met and (ii) a written
affirmation by the Indemnified Party of such Indemnified Party’s good faith belief that the
standard of conduct necessary for indemnification by the Trust has been met.



     Section 2. Exclusivity, Etc. The indemnification and advance of expenses provided by the
Declaration of Trust and these Bylaws shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advance of expenses may be entitled under any law (common or
statutory), or any agreement, vote of Unitholders or disinterested Trustees or other provision
which is consistent with law, both as to action in his or her official capacity and as to action in
another capacity while holding office or while employed by or acting as agent for the Trust, shall
continue in respect of all events occurring while a person was a Trustee or officer after such
person has ceased to be a Trustee or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to indemnification and advancement of
expenses under the Declaration of Trust and these Bylaws shall be deemed to be a contract between
the Trust and each Trustee or officer of the Trust who serves or served in such capacity at any
time while such provisions are in effect. Nothing herein shall prevent the



 









 







amendment of these Bylaws, provided that no such amendment shall diminish the rights of any
person hereunder with respect to events occurring or claims made before its adoption or as to
claims made after its adoption in respect of events occurring before its adoption. Any repeal or
modification of these Bylaws shall not in any way diminish any rights to indemnification or
advancement of expenses of such Trustee or officer of the obligations of the Trust arising
hereunder with respect to events occurring, or claims made, while these Bylaws or any provision
hereof is in effect.



ARTICLE VI. CONTRACTS AND ACCOUNTING




     Section 1. Contracts. The Board may authorize any officer or agent to enter into any contract
or to execute and deliver any instrument in the name of and on behalf of the Trust and such
authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or
other document executed by one or more of the Trustees or by an authorized person shall be valid
and binding on the Board and on the Trust when authorized or ratified by action of the Board.



     Section 2. Checks And Drafts. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Trust shall be signed by such
officer or agent of the Trust in such manner as shall from time to time be determined by the Board.



     Section 3. Deposits. All funds of the Trust not otherwise employed shall be deposited from
time to time to the credit of the Trust in such banks, trust companies or other depositories as the
Board may designate.



     Section 4. Books and Records. The Trust shall keep correct and complete books and records of
its accounts and transactions and minutes of the proceedings of its Unitholders and Board and of
any executive or other committee when exercising any of the powers of the Board. The books and
records of the Trust may be in written form or in any other form which can be converted within a
reasonable time into written form for visual inspection. Minutes shall be recorded in written form
but may be maintained in the form of a reproduction. The original or a certified copy of the Bylaws
shall be kept at the principal office of the Trust.



     Section 5. Fiscal Year. The fiscal year of the Trust shall be the twelve months ending
December 31 in each year, unless otherwise provided by the Board.



ARTICLE VII. UNITS




     Section 1. Certificates. Each Unitholder shall be entitled to a certificate or certificates
which shall represent and certify the number of Units of each class held by him or her in the
Trust; provided, however, that the Board may provide by resolution or resolutions that some or all
of any class or series of Units shall be uncertificated. Each certificate shall be signed by the
Chairman of the Board (or any Co-Chairman of the Board, if there is more than one), the President
or a Vice President and countersigned by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer and may be sealed with the seal, if any, of the Trust. The signatures may
be either manual or facsimile. Certificates shall be consecutively numbered; and if the Trust
shall, from time to time, issue several classes of Units, each class may have its own



 









 







number series. A certificate is valid and may be issued whether or not an officer who signed
it is still an officer when it is issued. Each certificate representing Units which are restricted
as to their transferability or voting powers, which are preferred or limited as to their dividends
or as to their allocable portion of the assets upon liquidation or which are redeemable at the
option of the Trust, shall have a statement of such restriction, limitation, preference or
redemption provision, or a summary thereof, plainly stated on the certificate. If the Trust has
authority to issue Units of more than one class, the certificate shall contain on the face or back
a full statement or summary of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other distributions, qualifications
and terms and conditions of redemption of each class of Units and, if the Trust is authorized to
issue any preferred or special class in series, the differences in the relative rights and
preferences between the Units of each series to the extent they have been set and the authority of
the Board to set the relative rights and preferences of subsequent series. In lieu of such
statement or summary, the certificate may state that the Trust will furnish a full statement of
such information to any Unitholder upon request and without charge. If any class of Units is
restricted by the Trust as to transferability, the certificate shall contain a full statement of
the restriction or state that the Trust will furnish information about the restrictions to the
Unitholder on request and without charge.



     Section 2. Transfers. Upon surrender to the Trust or the transfer agent of the Trust of a Unit
certificate duly endorsed or accompanied by proper evidence of succession, assignment or authority
to transfer, the Trust shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction on its books. Notwithstanding the foregoing, transfers of
Units of any class will be subject in all respects to the Declaration of Trust and all of the terms
and conditions contained therein.



     Section 3. Replacement Certificate. Any officer designated by the Board may direct a new
certificate to be issued in place of any certificate previously issued by the Trust alleged to have
been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance of a new
certificate, an officer designated by the Board may, in his or her discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or the owner’s legal representative to advertise the same in such manner as he or she shall require
and/or to give bond, with sufficient surety, to the Trust to indemnify it against any loss or claim
which may arise as a result of the issuance of a new certificate.



     Section 4. Closing of Transfer Books or Fixing of Record Date.



     (a) Fixing of Record Date. The Board may set, in advance, a record date for the purpose of
determining Unitholders entitled to notice of or to vote at any meeting of Unitholders or
determining Unitholders entitled to receive payment of any dividend or the allotment of any other
rights, or in order to make a determination of Unitholders for any other proper purpose. Such date,
in any case, shall not be prior to the close of business on the day the record date is fixed and
shall be not more than 90 days, and in the case of a meeting of the Unitholders not less than ten
days, before the date on which the particular action requiring such determination of Unitholders of
record is to be held or taken. In lieu of fixing a record date, the Board may provide that the Unit
transfer books shall be closed for a stated period but not longer than 20 days.



 









 





     (b) If Record Date Not Fixed. If no record date is fixed and the Unit transfer books are not
closed for the determination of Unitholders, the record date for the determination of Unitholders
entitled to receive a payment of a dividend or an allotment of any other rights shall be the close
of business on the day on which the resolution of the Board, declaring the dividend or allotment of
rights, is adopted.



     (c) Record Dates for Adjourned Meetings. When a determination of Unitholders entitled to vote
at any meeting of Unitholders has been made as provided in the Declaration of Trust, such
determination shall apply to any adjournment thereof, except when the meeting is adjourned to a
date more than 120 days after the record date fixed for the original meeting, in which case a new
record date shall be determined as set forth in the Declaration of Trust.



     (d) Unit Transfers After Record Date. Except where the Board fixes a new record date for any
adjourned meeting as provided above, any Unitholder who was a Unitholder on the original record
date shall be entitled to receive notice of and to vote at a meeting of Unitholders or any
adjournment thereof and to receive a dividend or allotment of rights even though he or she has
since such date disposed of his or her Units, and no Unitholder becoming a Unitholder after such
date shall be entitled to receive notice of or to vote at such meeting or any adjournment thereof
or to receive such dividend or allotment of rights.



     Section 5. Unit Ledger. The Trust shall maintain at its principal office or at the office of
its counsel, accountants or transfer agent, an original or duplicate Unit ledger containing the
name and address of each Unitholder and the number of Units of each class held by such Unitholder.
The Trust shall be entitled to treat the holder of record of any Unit as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in
such Unit or on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of Maryland.



     Section 6. Fractional Units; Issuance of Units. The Board may issue fractional Units or
provide for the issuance of scrip, all on such terms and under such conditions as they may
determine. Notwithstanding any other provision of the Declaration of Trust or these Bylaws to the
contrary, the Board may issue units consisting of different securities of the Trust. Any security
issued in a unit shall have the same characteristics as any identical securities issued by the
Trust, except that the Board may provide that, for a specified period, securities of the Trust
issued in such unit may be transferred on the books of the Trust only in such unit.



ARTICLE VIII. EXEMPTION FROM CONTROL SHARE ACQUISITION ACT




     The provisions of Title 3, Subtitle 7 of the Maryland General Corporation Law (the Maryland
Control Share Acquisition Act), or any successor statute, shall not apply to any acquisition by any
person of Units of the Trust. This section may be repealed, in whole or in part, at any time,
whether before or after an acquisition of control shares and, upon such repeal, may, to the extent
provided by any successor bylaw and consistent with applicable law, apply to any prior or
subsequent control share acquisition.



 









 





ARTICLE IX. AMENDMENT




     The Trustees shall have the exclusive power to adopt, alter or repeal any provisions of these
Bylaws.



ARTICLE X. SEAL



     Section 1. Seal. The Board may adopt a suitable seal, bearing the name of the Trust, which
shall be in the charge of the Secretary. The Board may authorize one or more duplicate seals and
provide for the custody thereof.



     Section 2. Affixing Seal. Whenever the Trust is permitted or required to affix its seal to a
document, it shall be sufficient to meet the requirements of any law, rule or regulation relating
to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute
the document on behalf of the Trust.