**Exhibit3.2.1**

 

**SECONDAMENDED AND RESTATED BYLAWS**

**OFINLAND WESTERN RETAIL REAL ESTATE TRUST, INC.**

 

**ARTICLE IOFFICES AND FISCAL YEAR**

 

**SECTION 1.****REGISTEREDOFFICE/AGENT.**InlandWestern Retail Real Estate Trust, Inc. (the “Company”) shall continuously maintainin the State of Maryland a registered office and a registered agent whoseoffice is identical with such registered office. The address of the Company’sregistered office in the State of Maryland is 300 East Lombard Street,Baltimore, Maryland 21202. The name of the Company’s registered agent at suchaddress is The Corporation Trust Incorporated. The Company reserves the powerto change its registered agent and registered office at any time.

 

**SECTION 2.****PRINCIPAL OFFICE.******Thepost office address of the principal office of the Company in the State ofMaryland is c/o The Corporation Trust Incorporated, 300 East Lombard Street,Baltimore, Maryland 21202.

 

**SECTION 3.****OTHEROFFICES.**The Companymay also have offices other than its principal office at such other places bothwithin and without the State of Maryland as the Board of Directors of theCompany (the “Board”) may from time to time determine or as the business of theCompany may require.

 

**SECTION 4.****FISCALAND TAXABLE YEARS.**Thefiscal and taxable years of the Company shall begin on January 1 and endon December 31.

 

**ARTICLE IISTOCKHOLDERS**

 

**SECTION 1.********ANNUAL****MEETING.******An annual meeting of the stockholders of theCompany (the “Stockholders”) shall be held on the first Tuesday in May of eachyear, commencing in 2003, or on such other day in May as the Board maydetermine; provided, however, such meeting shall not be held less than 30 daysafter delivery of the annual report to the Stockholders. The purpose of eachannual meeting of the Stockholders is to elect directors of the Company (the “Directors”)and to transact such other business, as may properly come before the meeting.If the day fixed for the annual meeting shall be a legal holiday, such meetingshall be held on the next succeeding business day.

 

**SECTION 2.****SPECIALMEETINGS.**Specialmeetings of the Stockholders may be called by the chairman, the president, amajority of the Directors or a majority of the Independent Directors (asdefined in the Articles of Incorporation of the Company), and shall be calledby the

 

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secretaryor another officer of the Company upon written request (which request statesthe purpose of the meeting and the matter(s) to be acted upon) of Stockholdersholding in the aggregate not less than 10% of the outstanding shares of capitalstock of the Company (“Shares”) entitled to vote at such meeting. Upon receiptof such a written request, the secretary of the Company shall inform theStockholders making the request of the reasonably estimated cost of preparingand mailing a notice of such meeting; and upon payment of these costs to theCompany, notify each Stockholder entitled to notice of the meeting not lessthan fifteen (15) nor more than sixty (60) days prior to the date of suchmeeting. Unless requested by the Stockholders entitled to cast a majority ofall the votes entitled to be cast at such meeting, a special meeting need notbe called to consider any matter which is substantially the same as a mattervoted on at any special meeting of the Stockholders held during the preceding12 months. At such meeting, a majority of then outstanding shares may, withoutthe necessity for concurrence by the Board of Directors, vote to amend theArticles (as defined below), terminate the Company or remove any member of theBoard of Directors, consistent with these Bylaws.

 

**SECTION 3.****PLACE OF****MEETINGS.** Each meeting of the Stockholders for theelection of Directors shall be held at the principal executive offices of theCompany unless the Board shall by resolution designate any other place for suchmeeting. Meetings of Stockholders for any other purpose may be held at suchplace, within or without the State of Maryland, and at such time as shall bedetermined pursuant to Section 2 of this Article II, and stated inthe notice of the meeting or in a duly executed waiver of notice thereof.

 

**SECTION 4.****NOTICE OFMEETINGS.**Except asprovided in the second sentence of Section 2 of this Article II, notless than ten (10) nor more than ninety (90) days before an annual or a specialmeeting of Stockholders, the secretary shall give to each Stockholder entitledto vote at such meeting and to each Stockholder not entitled to vote who isentitled to notice of the meeting, written or printed notice stating the timeand place of the meeting and, in the case of a special meeting or as otherwisemay be required by any statute, the purpose for which the meeting is called,either by mail, by presenting it to such Stockholder personally or by leavingit at such Stockholder’s residence or usual place of business. If mailed, suchnotice shall be deemed to be given when deposited in the United States mailaddressed to the Stockholder at its post office address which appears in therecords of the Company, with postage thereon prepaid.

 

**SECTION 5.****SCOPE OFNOTICE.**Any businessof the Company may be transacted at an annual meeting of Stockholders withoutbeing specifically designated in the notice required in Section 4 of this Article II,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 Stockholders except asspecifically designated in the notice.

 

**SECTION 6.****WAIVER OFNOTICE.**Anything inthese Bylaws to the contrary notwithstanding, with respect to any meeting ofthe Stockholders, any Stockholder who in person or by proxy shall have waivedin writing notice of the meeting, either before or after such meeting, or whoshall attend the meeting in person or by proxy, shall be deemed to have waivednotice of such meeting unless such Stockholder attends for the express purposeof objecting, at the beginning of the meeting, and docs so object to thetransaction of any business because the meeting is not lawfully called orconvened.

 

**SECTION 7.****QUORUM; MANNER OF ACTING AND ORDER OFBUSINESS.**Subject toany other provision of these Bylaws, the Articles of Incorporation of theCompany, as

 

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amendedand restated (the “Articles”), and the Maryland General Corporation Law (the “MGCL”),as to the vote that is required for a specified action, the presence in personor by proxy of the holders of a majority of the outstanding Shares entitled tovote at any meeting of Stockholders shall constitute a quorum for thetransaction of business and may, without the necessity for concurrence by theDirectors, vote to elect the Directors, The vote of the holders of a majorityof the Shares entitled to vote, present in person or represented by proxy at ameeting at which a quorum is present, shall be binding on all Stockholders,unless the vote of a greater number or voting by classes is required by theMGCL, the Articles or these Bylaws, The Stockholders present at a duly calledor held meeting at which a quorum is present may continue to do business untiladjournment, notwithstanding the withdrawal of Stockholders such that less thana quorum is present.

 

In the absence of a quorum, Stockholdersholding a majority of the Shares present in person or by proxy and entitled tovote, or if no Stockholders are present, any officer entitled to preside at oract as secretary of the meeting, may adjourn the meeting to another time andplace. Any business which might have been transacted at the original meetingmay be transacted at any adjourned meeting at which a quorum is present. Nonotice of an adjourned meeting need be given if the lime and place areannounced at the meeting at which the adjournment is taken except that, ifadjournment is for more than 120 days or if, after the adjournment, a newrecord date is fixed for the meeting, notice of the adjourned meeting shall begiven pursuant to Section 4 of this Article II.

 

Meetings of the Stockholders shall bepresided over by the chairman, or in his absence bythe president, or in his absence by a vice president, or in the absence of theforegoing persons by a chairman designated by the Board, or in the absence ofsuch designation, by a chairman chosen at the meeting. The secretary of theCompany shall act as secretary of the meeting, but in his absence the chairmanof the meeting may appoint any person to act as secretary of the meeting. Theorder of business at all meetings of the Stockholders shall be determined bythe chairman. The order of business so determined, however, may be changed byvote of the holders of a majority of the Shares present in person orrepresented by proxy at a meeting at which a quorum is present.

 

**SECTION 8.****VOTING; PROXIES.** (a) Except as provided in paragraph (b) ofthis Section 8, or the Articles, each Stockholder of record on the recorddate, as determined pursuant to Section 6 of Article VI of theseBylaws, shall be entitled to one vote for every Share registered in his name.Each Stockholder entitled to vote at any meeting of Stockholders or to expressconsent to or dissent from corporate action in writing without a meeting mayauthorize another person to act for him by proxy. No proxy shall be valid after11 months from its date of execution, unless the proxy provides for a longerperiod.

 

(b)                                 Notwithstanding any other provision in theseBylaws, Subtitle 7 of Title 3 of the MGCL (or any successor statute) shall notapply to any acquisition by The Inland Group, Inc., a Delaware corporation, orany affiliate of The Inland Group, Inc. This Section 8(b) may be alteredor repealed, in whole or in part, by a majority of the Directors (including amajority of the Independent Directors) at any time.

 

(c)                                  With respect to Shares held by the advisorand the Board of Directors, neither the advisor, nor the members of the Boardof Directors, nor any affiliate will vote or consent on

 

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matters submitted to the Stockholders regarding the removal of the advisor,Board of Directors or any affiliate or any transaction between the Company andany of them.

 

**SECTION 9.****FIXINGDATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD.**In order that the Company may determine theStockholders entitled to notice of or to vote at any meeting of Stockholders orany adjournment thereof or entitled to receive payment of any dividend or otherdistribution or allotment of any rights, or entitled to exercise any rights inrespect of any change, conversion or exchange of Shares or for the purpose ofany other lawful action, the Board may fix, in advance, a record date, whichshall not be (i) more than ninety (90) nor less than ten (10) days before thedate of such meeting nor (ii) more than ninety (90) days prior to any otheraction. If no record date is fixed: (a) the record date for determiningStockholders entitled to notice of or to vote at a meeting of Stockholdersshall be at the close of business on the day next preceding the day on whichnotice is given or, if notice is waived, at the close of business on the daynext preceding the day on which the meeting is held; and (b) the record date fordetermining Stockholders for any other purpose shall be at the close ofbusiness on the day on which the Board adopts the resolution relating thereto.A determination of Stockholders of record entitled to notice of or to vote at ameeting of Stockholders shall apply to any adjournment of the meeting;provided, however, that the Board may fix a new record date for the adjournedmeeting.

 

**SECTION 10.****VOTING OFSHARES BY CERTAIN HOLDERS.**Any Shares registered in the name of a corporation, partnership, trustor other entity, if entitled to be voted, may be voted by the president, a vicepresident, a general partner or trustee thereof, as the case may be, or by aproxy appointed by any of the foregoing individuals, unless some other person,who has been appointed to vote such Shares pursuant to a bylaw or a resolutionof the governing board of such corporation or other entity or agreement of thepartners of the partnership, presents a certified copy of such bylaw,resolution or agreement, in which case such person may vote such Shares. Anytrustee or other fiduciary may vote Shares registered in his name as suchfiduciary, either in person or by proxy.

 

Shares of the Company 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 Directors may adopt by resolution aprocedure by which a Stockholder may certify in writing to the Company that anyShares registered in the name of the Stockholder are held for the account of aspecified person other than the Stockholder. The resolution shall set forth theclass of Stockholders who may make the certification, the purpose for which thecertification may be made, the form of certification and the information to becontained in it; and any other provisions with respect to the procedure whichthe Directors consider necessary or desirable. On receipt of such certification,the person specified in the certification shall be regarded as, for thepurposes set forth in the certification, the Stockholder of record of thespecified Shares in place of the Stockholder who makes the certification.

 

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**SECTION 11.****INSPECTORSOF ELECTION.**

 

(a)                                  In advance of any meeting of Stockholders,the Board may appoint inspectors of election to act at each meeting ofStockholders and any adjournment thereof. If inspectors of election are not soappointed, the chairman of the meeting may, and upon the request of any Stockholderor his proxy shall, appoint inspectors of election at the meeting. The numberof inspectors shall be either one or three. If appointed at the meeting uponthe request of one or more Stockholders or proxies, the vote of the holders ofa majority of Shares present in person or by proxy shall determine whether oneor three inspectors are appointed. In any case, if any person appointed as aninspector fails to appear or fails or refuses to act, the vacancy may be filledby appointment made by the Directors in advance of the meeting or at themeeting by the person acting as chairman.

 

(b)                                 The inspector(s) of election shall determinethe number of outstanding Shares, the Shares represented at the meeting and theexistence of a quorum, shall receive votes or consents, shall count andtabulate all votes and shall determine the result; and in connection therewith,the inspector(s) shall determine the authority, validity and effect of proxies,hear and determine all challenges and questions, and do such other ministerialacts as may be proper to conduct the election or vote with fairness to allStockholders. If there are three inspectors of election, the decision, act orcertificate of a majority is effective in all respects as the decision, act or certificateof all. If no inspectors of election are appointed, the secretary shall passupon all questions and shall have all other duties specified in this Section 11.

 

(c)                                  Upon request of the chairman of the meetingor any Stockholder or his proxy, the inspector(s) of election shall make areport in writing of any challenge or question or other matter determined byhim and shall execute a certificate of any fact found in connection therewith.Any such report or certificate shall be filed with the record of the meeting.

 

**SECTION 12.****REPORTSTO STOCKHOLDERS.**

 

(a)                                  The Directors shall submit to theStockholders at or before the annual meeting of Stockholders a report of thebusiness and operations of the Company during such fiscal year, containing abalance sheet and a statement of income and surplus of the Company, accompaniedby the certification of an independent certified public accountant, and suchfurther information as the Directors may determine is required pursuant to anylaw or regulation to which the Company is subject or is deemed desirable.Within the earlier of twenty (20) days after the annual meeting of Stockholdersor one hundred and twenty (120) days after the end of the fiscal year of the Company,the Directors shall place the annual report on file at the principal office ofthe Company and with any governmental agencies as may be required by law and asthe Directors may deem appropriate.

 

(b)                                 Not later than forty-five (45) days after theend of each of the first three (3) quarterly periods of each fiscal year, theDirectors shall deliver or cause to be delivered an interim report to theStockholders containing unaudited financial statements for such quarter and forthe period from the beginning of the fiscal year to the end of such quarter,and such further information as the Directors may determine is requiredpursuant to any law or regulation to which the Company is subject or is deemeddesirable.

 

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**SECTION 13.****LIST OF STOCKHOLDERSENTITLED TO VOTE.**Thesecretary shall make, at least ten (10) days before every meeting ofStockholders, a complete list of the Stockholders entitled to vote at themeeting, arranged in alphabetical order, and showing the address of eachStockholder and the number of Shares registered in the name of eachStockholder. Such list shall be open to the examination of any Stockholder, forany purpose germane to the meeting, during ordinary business hours, for aperiod of at least ten (10) days prior to the meeting, either at a place withinthe city where the meeting is to be held, which place shall be specified in thenotice of the meeting, or, if not so specified, at the place where the meetingis to be held. The list shall also be produced and kept at the time and placeof the meeting during the whole time thereof and may be inspected by anyStockholder who is present.

 

**SECTION 14.****ACTIONWITHOUT A MEETING.**Anyaction required or permitted to be taken at a meeting of Stockholders may betaken without a meeting if a unanimous consent in writing, setting forth suchaction, is signed by each Stockholder entitled to vote on the matter and anyother Stockholder entitled to notice of a meeting of Stockholders (but not tovote thereat) has waived in writing any right to dissent from such action, andsuch consent and waiver are filed with the minutes of proceedings of theStockholders.

 

**SECTION 15.****NOMINATIONSAND STOCKHOLDER BUSINESS.**

 

*(a)**                              **Annual Meetings ofStockholders.*

 

(1)                                  Nominations of persons for election to theBoard and the proposal of business to be considered by the Stockholders may bemade at an annual meeting of Stockholders: (i) pursuant to the Company’s noticeof meeting; (ii) by or at the direction of the Board; or (iii) by anyStockholder of the Company who was a Stockholder of record at the time ofgiving of notice provided for in this Section 15(a), who is entitled tovote at the meeting and who complied with the notice procedures set forth inthis Section 15(a).

 

(2)                                  For nominations or other business to beproperly brought before an annual meeting by a Stockholder pursuant to clause(iii) of paragraph (a)(l) of this Section 15, the Stockholder must havegiven timely notice thereof in writing to the secretary of the Company. To betimely, a Stockholder’s notice shall be delivered to the secretary at theprincipal executive offices of the Company not less than 45 days before thedate on which the Company first mailed its notice of meeting and accompanyingproxy materials for the prior year’s annual meeting of Stockholders. SuchStockholder’s notice shall set forth: (i) as to each person whom the Stockholderproposes to nominate for election or reelection as a Director all informationrelating to such person that is required to be disclosed in solicitations ofproxies for election of Directors, or is otherwise required, in each casepursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended(the “Exchange Act”) (including such person’s written consent to being named inthe proxy statement as a nominee and to serving as a Director if elected); (ii)as to any other business that the Stockholder proposes to bring before themeeting, a brief description of the business desired to be brought before themeeting, the reasons for conducting such business at the meeting and anymaterial interest in such business of such Stockholder and of the beneficialowner, if any, on whose behalf the proposal is made; and (iii) as to theStockholder giving the notice and the beneficial owner, if any, on whose behalfthe nomination or proposal is made, the name and address of such Stockholder,as they appear on the Company’s books, and that of such beneficial owner, andthe class and number of Shares which are owned beneficially and of record bysuch beneficial owner and such Stockholder.

 

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(3)                                  Notwithstanding anything in the secondsentence of paragraph (a)(2) of this Section 15 to the contrary, in theevent that the number of Directors to be elected to the Board isincreased and there is no public announcement naming all of the nominees forDirector or specifying the size of the increased Board made by the Company atleast 70 days prior to the first anniversary of the preceding year’s annualmeeting, a Stockholder’s notice required by this Section 15(a) shall alsohe considered timely, but only with respect to nominees for any new positionscreated by such increase, if it shall be delivered to the secretary at theprincipal executive offices of the Company not later than the close of businesson the tenth day following the day on which such public announcement is firstmade by the Company.

 

*(b)**                              **Special Meetings ofStockholders.*Only suchbusiness shall be conducted at a special meeting of Stockholders as shall havebeen brought before the meeting pursuant to the Company’s notice of meeting.Nominations of persons for election to the Board may be made at a specialmeeting of Stockholders at which Directors are to be elected: (i) pursuant tothe Company’s notice of meeting; (ii) by or at the direction of the Board; or(iii) provided that the Board has determined that Directors shall be elected atsuch special meeting, by any Stockholder of the Company who is a Stockholder ofrecord at the time of giving of notice provided for in this Section 15(b),who is entitled to vote at the meeting and who complied with the noticeprocedures set forth in this Section 15(b). In the event the Company callsfor a special meeting of Stockholders for the purpose of electing one or moreDirectors to the Board, any such Stockholder may nominate a person or persons(as the case may be) for election to such position as specified in the Company’snotice of meeting, if the Stockholder’s notice required by paragraph (a)(2) ofthis Section 15 shall be delivered to the secretary at the principalexecutive offices of the Company not earlier than the 90th day prior to suchspecial meeting and not later than the close of business on the later of the60th day prior to such special meeting or the tenth day following the day onwhich public announcement is first made of the date of the special meeting andof the nominees proposed by the Board to be elected at such meeting.

 

*(c)**                               **Access to Records.*Any Stockholder and any designatedrepresentative thereof shall be permitted access to all records of the Companyat all reasonable times, and may inspect and copy any of them for purposesspecified below. Inspection of the Company’s books and records by a statesecurities administrator shall be provided upon reasonable notice and duringnormal business hours at the business office of the Company. In addition, analphabetical list of names, addresses and business telephone numbers of theStockholders of the Company along with the number of Shares held by each ofthem (the “Stockholder List”) shall be maintained and updated quarterly as partof the books and records of the Company and shall be available for inspectionby any Stockholder or the Stockholder’s designated agent at the business officeof the Company upon the request of the Stockholder. A copy of the StockholderList shall be mailed to any Stockholder requesting the Stockholder List withinten days of the request. The copy of the Stockholder List shall be printed inalphabetical order, on white paper, and in a readily readable type size (in noevent smaller than 10-point type). The Company may impose a reasonable chargefor expenses incurred in reproducing such list. The permitted purposes forwhich a Stockholder may request a copy of the Stockholder List include, withoutlimitation, matters relating to Stockholders’ voting rights under the Articlesand the exercise of Stockholders’ rights under federal proxy laws andregulations. If the advisor of the Company (the “Advisor”) or the Directorsneglect or refuse to exhibit, produce or mail a copy of the Stockholder List asrequested in accordance with and as required by applicable law and theArticles, the Advisor and the Directors shall be liable to any Stockholderrequesting the Stockholder List, for the costs,

 

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including reasonable attorneys’ fees, incurred by thatStockholder for compelling the production of the Stockholder List, and foractual damages suffered by any Stockholder by reason of such refusal orneglect. It shall be a defense to such liability that the actual purpose andreason for the requests for inspection or for a copy of the Stockholder List isto secure such list of Stockholders or other information for the purpose ofselling such Stockholder List or copies thereof, or of using the same for acommercial purpose or other purpose not in the interest of the applicant as aStockholder relative to the affairs of the Company. The Company may require theStockholder requesting the Stockholder List to represent that the StockholderList is not requested for a commercial purpose unrelated to the Stockholder’sinterest in the Company. The remedies provided hereunder to Stockholdersrequesting copies of the Stockholder List arc in addition to, and shall not inany way limit, other remedies available to Stockholders under federal law, orthe laws of any state.

 

*(d)**                              **General.*

 

(1)                                  Only such persons who are nominated inaccordance with the procedures set forth in this Section 15 shall beeligible to serve as Directors and only such business shall be conducted at ameeting of Stockholders as shall have been brought before the meeting in accordancewith the procedures set forth in this Section 15. The presiding officer ofthe meeting shall have the power and duty to determine whether a nomination orany business proposed to be brought before the meeting was made in accordancewith the procedures set forth in this Section 15 and, if any proposednomination or business is not in compliance with this Section 15, to declarethat such defective nomination or business proposal be disregarded.

 

(2)                                  For purposes of this Section 15, “publicannouncement” shall mean disclosure in a press release prepared by or on behalfof the Company and reported by the Dow Jones News Service, Associated Press orcomparable news service or in a document publicly filed by the Company with theSecurities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of theExchange Act.

 

(3)                                  Notwithstanding the foregoing provisions ofthis Section 15, a Stockholder shall also comply with all applicablerequirements of state law and of the Exchange Act and the rules and regulationsthereunder with respect to the matters set forth in this Section 15.Nothing in this Section 15 shall be deemed to affect any rights ofStockholders to request inclusion of proposals in any of the Company’s proxystatements pursuant to Rule 14a-8 under the Exchange Act.

 

**ARTICLE IIIBOARD OF DIRECTORS**

 

**SECTION 1.****GENERAL POWERS.** The business and affairs of the Companyshall be managed by or under the direction of the Board. Unless otherwiseprovided by the Articles, Directors need not be Stockholders. A Director shallbe an individual at least 21 years of age who is not under legal disability.

 

**SECTION 2.****NUMBER, TENUREAND QUALIFICATIONS.**The number of Directors of the Company shall be five (5). At any regularmeeting or at any special meeting called for that purpose, by the affirmativevote of at least a majority of the Directors (including a

 

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majorityof the Independent Directors), the Board may increase or decrease the number ofDirectors; provided, that the number thereof shall not be fewer than three (3)nor more than eleven (11); and provided further, that the tenure of office of aDirector shall not be affected by any decrease in the number of Directors.

 

**SECTION 3.****RESIGNATIONSAND REMOVAL.**AnyDirector may resign by written notice to the Board, effective upon executionand delivery to the Company of such written notice or upon any future datespecified in the notice. A Director may be removed at any time, with or withoutcause, at an annual or special meeting of the Stockholders, by the affirmativevote of the holders of not less than a majority of Shares then outstanding andentitled to vote generally in the election of Directors.

 

**SECTION 4.****MEETINGS.**Meetings of the Board may becalled by or at the request of the chairman, the president, a majority of theDirectors or a majority of the Independent Directors. The person or personsauthorized to call meetings of the Board may Fix anyplace as the place for holding any meeting of the Board called by them.Meetings of the Board may be held within or outside the State of Maryland.

 

**SECTION 5.****BUSINESSOF MEETINGS.**Except as otherwise expressly provided in these Bylaws, any and allbusiness may be transacted at any meeting of the Board.

 

**SECTION 6.****NOTICE OFMEETINGS.**Notice ofany meeting shall be given to each Director at his principal place of business:(i) at least two days previous thereto if delivered by messenger, overnightcourier or facsimile; or (ii) at least five days previous thereto if mailed.

 

**SECTION 7.****ATTENDANCEBY TELEPHONE.**Directorsmay participate in meetings of the Board by means of conference telephone orsimilar communications equipment by means of which all Directors participatingin the meeting can hear and speak to one another, andsuch participation shall constitute presence in person at the meeting.

 

**SECTION 8.****QUORUMAND MANNER OF ACTING; ADJOURNMENT.**Subject to the following sentence, a majority of the Directors shallconstitute a quorum for the transaction of business at any meeting of the Boardand the act of a majority of the Directors present at any meeting at which aquorum is present shall be the act of the Board. If less than a majority ofsuch Directors are present at said meeting, a majority of the Directors presentmay adjourn the meeting from time to time without further notice, and providedfurther that if, pursuant to the Articles or these Bylaws, the vote of amajority of Independent Directors is required for action, a quorum must alsoinclude a majority of such group.

 

**SECTION 9.****ACTIONWITHOUT A MEETING.**Anyaction which could be taken at a meeting of the Board may be taken without ameeting if all of the Directors consent to the action in writing and thewriting or writings are filed with the minutes ofproceedings of the Board.

 

**SECTION 10.****FILLINGOF VACANCIES.**If forany reason any or all the Directors cease to be Directors, such event shall notterminate the Company or affect these Bylaws or the powers of the remainingDirectors hereunder (even if fewer than three Directors remain). If a vacancyin the Board of Directors shall occur (whether arising through death,resignation or through an increase in the number of Directors), the vacancyshall be filled by the affirmative

 

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vote of a majority of the remaining Directors, at any regular meeting orany special meeting called for that purpose, even though less than a quorum ofthe Board of Directors may exist. Any vacancy in the number of Directorscreated as a result of the removal of a Director by the Stockholders shall befilled by a majority vote of the Stockholders. Any Director may resign at anytime and may be removed with or without cause at an annual or special meetingof Stockholders by the affirmative vote of the holders of not less than amajority of the outstanding Shares entitled to vote generally in the electionof Directors. Any individual so elected as Director shall hold office for theunexpired term of the Director he is replacing.

 

**SECTION 11.****COMPENSATIONOF DIRECTORS.**TheBoard shall have the authority to fix the compensation of Directors, unlessotherwise provided in the Articles.

 

**SECTION 12.****PRESIDINGOFFICER.**Thepresiding officer at any meeting of the Board shall be the chairman, or in hisabsence, any other Director elected chairman by vote of a majority of theDirectors present at the meeting.

 

**SECTION 13.****COMMITTEE.**The Board will designate anAudit Committee consisting of at least three Independent Directors. The AuditCommittee shall (i) engage the independent public accountants, (ii) review theplans and results of the audit engagement with the independent publicaccountants, (iii) approve professional services provided by, and theindependence of, the independent public accountants, (iv) consider the range ofaudit and non-audit fees, (v) consult with the independent public accountantsregarding the adequacy of the Company’s internal accounting controls and (vi)such other duties and responsibilities as the law requires.

 

The Board may establish an ExecutiveCommittee consisting of three Directors, including two Independent Directors.The Executive Committee, to the extent provided by the Board and otherwisepermitted by law, shall have and exercise all of the authority of the Board inthe management of the Company, such Executive Committee to keep minutes of itsproceedings and report the same to the Board when required.

 

The Board may establish an ExecutiveCompensation Committee consisting of three Directors, including two IndependentDirectors, to establish compensation policies and programs for the Company’sexecutive officers. The Executive Compensation Committee will exercise allpowers of the Board in connection with establishing and implementingcompensation matters, including incentive compensation and benefit plans.

 

The Board may establish such other committeesas the Directors deem appropriate and appoint the members thereof. Service onsuch committees shall be at the pleasure of the Board, which may by a majorityvote taken in accordance with these Bylaws, increase or decrease committeemembership, remove a committee member and appoint members to fill vacancies ina committee. Any committee of the Board shall make such reports as required bythe Board available to the entire Board for review and any necessary action bythe Board.

 

Nothing in this Section 13 shall beconstrued as precluding the Board or officers from appointing such othercommittees as they deem necessary and proper, to aid in the management andoperation of the Company’s business.

 

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**SECTION 14.****RELIANCE.**Each Director, officer,employee and agent of the Company shall, in the performance of his duties withrespect to the Company, be fully justified and protected with regard to any actor failure to act in reliance in good faith upon the books of account or otherrecords of the Company, upon an opinion of counsel or upon reports made to theCompany by any of its officers or employees or by the Advisor, accountants,appraisers or other experts or consultants selected by the Board or officers ofthe Company, regardless of whether such counsel or expert may also be aDirector.

 

**ARTICLE IVOFFICERS**

 

**SECTION 1.****NUMBER.**The officers of the Companymay consist of the chairman, the president, one or more vice presidents (thenumber thereof to be determined by the Board), the secretary, the treasurer andsuch assistant secretaries and assistant treasurers or any other officers thereunto authorized or elected by the Board. Anytwo or more offices may be held by the same person.

 

**SECTION 2.****ELECTIONAND TERM OF OFFICE.**Theofficers of the Company shall be elected by the Board at their first meetingand thereafter at any subsequent meeting and shall hold their offices for suchterm as determined by the Board. Each officer shall hold office until hissuccessor is duly elected and qualified, or until his death or disability, oruntil he resigns or is removed from his duties in the manner hereinafterprovided.

 

**SECTION 3.****REMOVALAND RESIGNATION.**Anyofficer may be removed, eitherwith or without cause, by a majority of the Directors then in office, at anymeeting of the Board. Any officer may resign at any time by giving writtennotice to the Company. Any such resignation shall take effect at the date ofthe receipt of such notice or at any later time specified therein.

 

**SECTION 4.****VACANCIES.**A vacancy in any officebecause of death, resignation or removal or any other cause may be filled bythe Board.

 

**SECTION 5.****CHAIRMAN.**The chairman shall be thechief executive officer of the Company. The chairman shall preside at allmeetings of the Board, and at all Stockholders’ meetings, whether annual orspecial, at which he or she is present and shall exercise such other powers andperform such other duties as the Board may from time to time assign to him orher or as may be prescribed by these Bylaws. Except in those instances in whichthe authority to execute is expressly delegated to another officer or agent ofthe Company, or a different mode of execution is expressly prescribed by theBoard or these Bylaws, the chairman may execute for the Company certificatesfor its Shares and any contracts, deeds, mortgages, bonds or other instrumentswhich the Board have authorized to be executed, and the chairman may accomplishsuch execution either under or without the seal of the Company, or eitherindividually or with the secretary, any assistant secretary or any otherofficer thereunto authorized by the Board, according to the requirements of theform of the instrument or applicable law.

 

**SECTION 6.****PRESIDENT.**The president shall be thechief operating officer of the Company. Subject to the direction and control ofthe Board, the president shall be in charge of the business of the Company; thepresident shall see that the resolutions and directions of the

 

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Boardarc carried into effect, except in those instances in which that responsibilityis specifically assigned to some other person by the Board; and in general, thepresident shall discharge all duties incident to the office of president andsuch other duties as may be prescribed by the Board from time to time. Exceptin those instances in which the authority to execute is expressly delegated toanother officer or agent of the Company, or a different mode of execution isexpressly prescribed by the Board or these Bylaws, the president may executefor the Company, certificates for its Shares, and any contracts, deeds,mortgages, bonds or other instruments which the Board have authorized to beexecuted, and the president may accomplish such execution either under orwithout the seal of the Company, or either individually or with the secretary, anyassistant secretary or any other officer thereunto authorized by the Board,according to the requirements of the form of the instrument or applicable law.The president may vote all securities which the Company is entitled to vote,except as and to the extent such authority shall be vested in a differentofficer or agent of the Company by the Board.

 

**SECTION 7.****VICEPRESIDENT.**The vicepresident (or in the event there be more than one vice president, each of thevice presidents), if one shall be elected, shall assist the president in thedischarge of the president’s duties, as the president may direct, and shallperform such other duties as from time to time may be assigned to him or her bythe president or by the Board. In the absence of the president or in the eventof the president’s inability or refusal to act, the vice president (or in theevent there be more than one vice president, the vice presidents in the orderdesignated by the Board, or in the absence of any designation, then in theorder of seniority of tenure as vice president) shall perform the duties of thepresident, and when so acting, shall have the powers of and be subject to allthe restrictions upon the president. Except in those instances in which theauthority to execute is expressly delegated to another officer or agent of theCompany, or a different mode of execution is expressly prescribed by the Boardor these Bylaws, the vice president (or each of them if there are more thanone) may execute for the Company, certificates for its Shares and anycontracts, deeds, mortgages, bonds or other instruments which the Board haveauthorized to be executed, and he or she may accomplish such execution eitherunder or without the seal of the Company, and either individually or with thesecretary, any assistant secretary or any other officer thereunto authorized bythe Board, according to the requirements of the form of the instrument orapplicable law.

 

**SECTION 8.****TREASURER.**The treasurer shall be thechief financial officer of the Company. The treasurer shall: (i) have charge ofand be responsible for the maintenance of the adequate books and records forthe Company; (ii) have charge and custody of all funds and securities of theCompany, and be responsible therefor and for the receipt and disbursementthereof; and (iii) perform all the duties incident to the office of treasurerand such other duties as from time to time may be assigned to him or her by thepresident or by the Board. If required by the Board, the treasurer shall give abond for the faithful discharge of his or her duties in such sum and with suchsurety or sureties as the Board may determine.

 

**SECTION 9.****SECRETARY.**The secretary shall: (i)record the minutes of the Stockholders’ and of the Board of Directors’ meetingsin one or more books provided for that purpose; (ii) see that all notices areduly given in accordance with the provisions of these Bylaws or as required bylaw; (iii) be custodian of the corporate books and records and of the seal ofthe Company; (iv) keep a register of the post-office address of eachStockholder which shall be furnished to the secretary by such Stockholder; (v)sign with the chairman or the president or a vice president or any otherofficer thereunto authorized by the Board, certificates for the Shares, and anycontracts, deeds, mortgages, bonds or other instruments which the Board have

 

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authorized to be executed, according to the requirements of the form ofthe instrument or applicable law, except when a different mode of execution isexpressly prescribed by the Board or these Bylaws; (vi) have general charge ofthe stock transfer books of the Company; and (vii) perform all duties incidentto the office of secretary and such other duties as from time to time may beassigned to him or her by the president or by the Board.

 

**SECTION 10.****ASSISTANTTREASURERS AND ASSISTANT SECRETARIES.**The assistant treasurers and assistant secretaries shall perform suchduties as shall be assigned to them by the Board. When the secretary isunavailable, any assistant secretary may sign with the president, or a vicepresident, or any other officer thereunto authorized by the Board, anycontracts, deeds, mortgages, bonds or other instruments according to therequirements of the form of the instrument or applicable law, except when adifferent mode of execution is expressly prescribed by the Board or theseBylaws. The assistant treasurers shall if required by the Board, give bonds forthe faithful discharge of their duties in such sums and with such sureties asthe Board shall determine.

 

**SECTION 11.****SALARIES.**The salaries of the officersshall be fixed from time to time by the Board (or an appropriately designatedcommittee of the Board) and no officer shall be prevented from receiving suchsalary by reason of the fact that he is also a Director of the Company.

 

**ARTICLE VCONTRACTS, LOANS, CHECKS AND DEPOSITS**

 

**SECTION 1.****CONTRACTS.**The Board may authorize anyofficer or officers, agent or agents, to enter into any contract or execute anddeliver any instrument in the name of and on behalf of the Company and suchauthority may be general or confined to specific instances.

 

**SECTION 2.****LOANS.**No loans shall be contractedon behalf of the Company and no evidences of indebtedness shall be issued inits name, unless authorized by a resolution of the Board. Such authority may begeneral or confined to specific instances.

 

**SECTION 3.****CHECKS, DRAFTS, ETC.******Allchecks, drafts or other orders for the payment of money, notes or otherevidences of indebtedness issued in the name of the Company shall be signed bysuch officer or officers or agent or agents of the Company and in such manneras shall from time to time be determined by resolution of the Board.

 

**SECTION 4.****DEPOSITS.**All funds of the Company nototherwise employed shall be deposited from time to time to the credit of theCompany in such banks, trust companies or other depositories as the Board maydesignate.

 

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**ARTICLE VISHARES OF EQUITY STOCK**

 

**SECTION 1.****RECORDSAND CERTIFICATES.**Recordsshall be kept by or on behalf of the Company, which shall contain the names andaddresses of Stockholders, the number of Shares held by them, respectively, andthe number of certificates, if any, representing the Shares, and in which thereshall be recorded all transfers of Shares. Every Stockholder shall be entitledto a certificate signed by the chairman, or the president or a vice president,and by the secretary or an assistant secretary of the Company, certifying theclass and number of Shares owned by him in the Company, provided that any andall signatures on a certificate may be a facsimile. In case any officer,transfer agent or registrar who has signed or whose facsimile signature hasbeen placed upon a certificate shall have ceased to be such officer, transferagent or registrar before such certificate is issued, it may be issued by theCompany with the same effect as if he or it were such officer, transfer agentor registrar at the date of issue. Each certificate representing Shares whichare restricted as to their transferability or voting powers, which arepreferred or limited as to their dividends or as to their allocable portion ofthe assets of the Company upon liquidation or which are redeemable at theoption of the Company, shall have a statement of such restriction, limitation,preference or redemption provision, or a summary thereof, plainly stated on thecertificate. In lieu of such statement or summary, the Company may set forthupon the face or back of the certificate a statement that the Company willfurnish to any Stockholder, upon request and without charge, a full statementof such information.

 

**SECTION 2.****TRANSFER AGENTS ANDREGISTRARS.**The Company mayserve as the transfer agent and registrar of the Shares, or the Board may, inits discretion, appoint one or more responsible banks or trust companies as theboard may deem advisable, from time to time, to act as transfer agents andregistrars of Shares. No certificate for Shares shall be valid untilcountersigned by the transfer agent and registered by the registrar.

 

**SECTION 3.****STOCKHOLDERS’ADDRESSES.**EveryStockholder or transferee shall furnish the secretary or a transfer agent withthe address to which notice of meetings and all other notices may be servedupon or mailed to such Stockholder or transferee, and in default thereof, suchStockholder or transferee shall not be entitled to service or mailing of anysuch notice.

 

**SECTION 4.****LOSTCERTIFICATES.**In theevent a certificate for Shares is lost, stolen or destroyed, the Board, in itsdiscretion, or any transfer agent duly authorized by the Board in itsdiscretion, may authorize the issue of a substitute certificate in place of thecertificate so lost, stolen or destroyed. The Company may require the owner ofthe lost, stolen or destroyed certificate or his legal representative to givethe Company a bond sufficient to indemnify the Company against any claim thatmay be made against it on account of the alleged loss, theft or destruction ofany such certificate or the issuance of such new certificate or uncertifiedShares.

 

**SECTION 5.****DISTRIBUTIONSTO STOCKHOLDERS.**Tothe extent permitted by the MGCL and subject to any restrictions contained inthe Articles, the Directors may declare and pay dividends upon the Shares inthe manner and upon the terms and conditions provided by the MGCL and theArticles.

 

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**SECTION 6.****RECORD****DATES.** The Board may set, in advance, a record datefor the purpose of determining Stockholders entitled to notice of or to vote atany meeting of Stockholders, or Stockholders entitled to receive payment of anydividend or the allotment of any other rights, or in order to make adetermination of Stockholders for any other proper purpose. Such date, in anycase, shall not be prior to the close of business on the day the record date isfixed and shall be not more than 90 days and, in the case of a meeting ofStockholders, not less than ten days, before the date on which the meeting orparticular action requiring such determination of Stockholders is to be held ortaken.

 

In lieu of fixing a record date, the Boardmay provide that the stock transfer books shall be closed for a stated periodbut not longer than 20 days. If the stock transfer books are closed for thepurpose of determining Stockholders entitled to notice of or to vote at ameeting of Stockholders, such books shall be closed for at least ten daysbefore the date of such meeting.

 

If no record date is fixed and the stocktransfer books are not closed for the determination of Stockholders: (a) therecord date for the determination of Stockholders entitled to notice of or tovote at a meeting of Stockholders shall be at the close of business on the dayon which the notice of meeting is mailed or the 30th day before the meeting,whichever is the closer date to the meeting; and (b) the record date for thedetermination of Stockholders 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 Directors, declaring the dividend or allotment ofrights, is adopted.

 

When a determination of Stockholders entitledto vote at any meeting of Stockholders has been made as provided in this Section 6,such determination shall apply to any adjournment thereof, except where thedetermination has been made through the closing of the transfer books and thestated period of closing has expired.

 

**SECTION 7.****TRANSFERSOF SHARES.**Shares ofthe Company may be transferred by delivery of the certificates therefor,accompanied either by an assignment in writing on the back of the certificates,or by written power of attorney to sell, assign and transfer the same, signedby the record holder thereof; but no transfer shall affect the right of theCompany to pay any distribution upon the Shares to the holder of recordthereof, or to treat the holder of record as the holder in fact thereof for allpurposes, and no transfer shall be valid, except between the parties thereto,until such transfer shall have been made upon the books of the Company.

 

**SECTION 8.****REPURCHASE OF SHARES ONOPEN MARKET.**The Company maypurchase its Shares on the open market and invest its assets in its own Shares,provided that in each case the consent of the Board shall have been obtained.

 

**ARTICLE VIIINDEMNIFICATION AND INSURANCE**

 

Capitalized terms used in this Article VIIand not otherwise defined shall have the meanings set forth in the Articles.

 

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**SECTION 1.****INDEMNIFICATION.**

 

(a)                                  Subject to paragraphs (b), (c) and (d) ofthis Section 1, the Company shall, to the fullest extent permitted byMaryland statutory or decisional law, as amended or interpreted and, withoutlimiting the generality of the foregoing, in accordance with Section 2-418of the MGCL, indemnify and pay, advance or reimburse reasonable expenses to anyDirector, officer, employee and agent of the Company and the Advisor and itsAffiliates (each an “Indemnified Party”).

 

(b)                                 As long as the Company qualifies as a REIT,it shall not indemnify nor pay, advance or reimburse expenses to an IndemnifiedParty unless: (i) the Indemnified Party has determined, in good faith, that thecourse of conduct which caused the loss or liability was in the best interestof the Company; (ii) the indemnified Party was acting on behalf of orperforming services on the part of the Company; (iii) such liability or losswas not the result of negligence or misconduct on the part of the IndemnifiedParty except that in the event the Indemnified Party is or was an IndependentDirector, such liability or loss shall not have been the result of gross negligenceor willful misconduct; and (iv) such indemnification or agreement to be held harmlessis recoverable only out of the Net Assets of the Company and not from the Stockholders.

 

(c)                                  As long as the Company qualifies as a REITand notwithstanding anything to the contrary in Section l(b) of this Article VII,the Company shall not indemnify a Director, officer, employee or agent of theCompany or the Advisor or its Affiliates for losses, liabilities or expensesarising from or out of an alleged violation of federal or state securities lawsby such party unless one or more of the following conditions are met: (i) therehas been a successful adjudication on the merits of each count involvingalleged securities law violations as to the particular Indemnified Party; (ii)such claims have been dismissed with prejudice on the merits by a court ofcompetent jurisdiction as to the particular Indemnified Party; or (iii) a courtof competent jurisdiction approves a settlement of the claims and finds thatindemnification of the settlement and related costs should be made and thecourt considering the request has been advised of the position of theSecurities and Exchange Commission and the published opinions of any statesecurities regulatory authority in which securities of the Company were offeredor sold as to indemnification for violations of securities laws.

 

(d)                                 The Company may advance amounts to anIndemnified Party for legal and other expenses and costs incurred as a resultof any legal action for which indemnification is being sought only in accordancewith Section 2-418 of the Maryland General Corporation Law, and, as longas the Company qualifies as a REIT, only if all of the following conditions aresatisfied: (i) the legal action relates to acts or omissions with respect tothe performance of duties or services by the Indemnified Party for or on behalfof the Company; (ii) the legal action is initiated by a third party who is nota Stockholder or the legal action is initiated by a Stockholder acting in hisor her capacity as such and a court of competent jurisdiction specificallyapproves such advancement; and (iii) the Indemnified Party receiving suchadvances undertakes in writing to repay the advanced funds to the Company,together with the applicable legal rate of interest thereon, in cases in whichsuch party is found not to be entitled to indemnification.

 

(c)                                  Neither the amendment nor repeal of this Article VII,nor the adoption or amendment of any other provision of the Bylaws or theArticles inconsistent with this Article VII, shall apply to or affect inany respect the applicability of the preceding paragraphs with respect to anyact or failure to act which occurred prior to such amendment, repeal oradoption.

 

**SECTION 2.****INDEMNIFICATIONINSURANCE.**TheCompany shall have the power to purchase and maintain insurance on behalf of anindemnified party against any liability asserted which was incurred in any suchcapacity with the Company, or arising out of such status; provided, however,that the Company shall not incur the costs of any liability insurance whichinsures any person against liability for which he, she or it could not beindemnified under

 

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the provisions of this Article VII. Nothing contained herein shallconstitute a waiver by any Indemnified Party of any right which he, she or itmay have against any party under federal or state securities laws.

 

**ARTICLE VIII**

**SEAL**

 

**SECTION 1.****SEAL.**The Board may authorize theadoption of a seal by the Company. The seal shall have inscribed thereon thename of the Company and the year of its organization. The Board may authorizeone or more duplicate seals and provide for the custody thereof.

 

**SECTION 2**. **AFFIXING SEAL.******Whenever the Company is required to placeits seal to a document, it shall be sufficient to meet the requirements of anylaw, rule or regulation relating to a seal to place the word “(SEAL)” adjacentto the signature of the person authorized to execute the document on behalf ofthe Company.

 

**ARTICLE IXAMENDMENTS**

 

Unless otherwise provided in the Articles,these Bylaws may be altered, amended or repealed and new Bylaws, notinconsistent with the Articles or the laws of the State of Maryland or otherapplicable law, may be adopted at any properly constituted meeting of the Boardby a majority vote of the Directors present at the meeting, except that in thecase of a matter which requires greater than a majority vote of the Directors,any amendment with respect to such matter must be approved by a vote ofDirectors equal to or greater than the number of votes required under these Bylawsto effectuate the matter in question.

 

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