exv4w4



 















RIGHTS AGREEMENT




between




ARCHSTONE-SMITH TRUST




and




MELLON INVESTOR SERVICES LLC




Rights Agent




Dated as of December 1, 2003




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page

	Section 1.	 	Certain Definitions
	 	 	1	 
	Section 2.	 	Appointment of Rights Agent
	 	 	5	 
	Section 3.	 	Issuance of Right Certificates
	 	 	6	 
	Section 4.	 	Form of Right Certificates
	 	 	8	 
	Section 5.	 	Countersignature and Registration
	 	 	9	 
	Section 6.	 	Transfer, Division, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates
	 	 	9	 
	Section 7.	 	Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	10	 
	Section 8.	 	Cancellation and Destruction of Right Certificates
	 	 	12	 
	Section 9.	 	Availability of Preferred Shares
	 	 	12	 
	Section 10.	 	Preferred Shares Record Date
	 	 	13	 
	Section 11.	 	Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	13	 
	Section 12.	 	Certificate of Adjusted Purchase Price or Number of Shares
	 	 	20	 
	Section 13.	 	Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	20	 
	Section 14.	 	Fractional Rights and Fractional Shares
	 	 	22	 
	Section 15.	 	Rights of Action
	 	 	24	 
	Section 16.	 	Agreement of Right Holders
	 	 	24	 
	Section 17.	 	Right Certificate Holder Not Deemed a Shareholder
	 	 	25	 
	Section 18.	 	Concerning the Rights Agent
	 	 	25	 
	Section 19.	 	Merger or Consolidation or Change of Name of Rights Agent
	 	 	25	 
	Section 20.	 	Rights and Duties of Rights Agent
	 	 	26	 
	Section 21.	 	Change of Rights Agent
	 	 	28	 
	Section 22.	 	Issuance of New Right Certificates
	 	 	29	 
	Section 23.	 	Redemption
	 	 	29	 
	Section 24.	 	Exchange
	 	 	30	 
	Section 25.	 	Notice of Certain Events
	 	 	32	 
	Section 26.	 	Notices
	 	 	32	 
	Section 27.	 	Supplements and Amendments
	 	 	33	 
	Section 28.	 	General Limitations on Redemption, Modification or Termination of Rights or Amendment to Agreement
	 	 	34	 
	Section 29.	 	Successors
	 	 	34	 
	Section 30.	 	Benefits of this Agreement
	 	 	34	 
	Section 31.	 	Severability
	 	 	34	 
	Section 32.	 	Governing Law
	 	 	34	 
	Section 33.	 	Counterparts
	 	 	34	 
	Section 34.	 	Descriptive Headings
	 	 	34	 
	Section 35.	 	Determinations and Actions by the Board of Trustees
	 	 	34	 
	Section 36.	 	Limitation of Liability
	 	 	35	 
	Exhibit A	 	-           Terms of Series B Junior Participating Preferred Shares
	 	 	 	 
	Exhibit B	 	-           Form of Right Certificate
	 	 	 	 







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RIGHTS AGREEMENT




     Rights Agreement, dated as of December 1, 2003 (this “Agreement”), between
Archstone-Smith Trust, a Maryland real estate investment trust (the “Trust”),
and Mellon Investor Services LLC, a New Jersey limited liability company, as
rights agent (the “Rights Agent”). This Agreements amends and supersedes that
certain Rights Agreement, dated as of August 31, 2001, between the Trust and
the Rights Agent.



WITNESSETH:




     WHEREAS, the Board of Trustees of the Trust (the “Board of Trustees”) has
authorized and declared a dividend of one preferred share purchase right (a
“Right”) for each Common Share (as hereinafter defined) of the Trust
outstanding as of the close of business on the effective date of the Primary
Archstone Merger (as such term is defined in the Amended and Restated Agreement
and Plan of Merger, dated as of May 3, 2001, by and among Archstone, the Trust,
Charles E. Smith Residential Realty, Inc. and Charles E. Smith Residential
Realty L.P. (the “Merger Agreement”) (the “Record Date”), each Right
representing the right to purchase one one-hundredth of a Preferred Share (as
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record
Date and the Expiration Date (as such term is hereinafter defined).



     NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:



     Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:




     “Acquiring Person” shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates and Associates (as such terms
are hereinafter defined) of such Person, shall be the Beneficial Owner
(as hereinafter defined) of 15% or more of the Common Shares of the Trust
then outstanding, but shall not include the Trust, any Subsidiary (as
hereinafter defined) of the Trust, or any employee benefit plan of the
Trust or of any Subsidiary of the Trust or any entity holding Common
Shares for or pursuant to the terms of any such plan. Notwithstanding
the foregoing, no Person shall become an “Acquiring Person” as the result
of (i) an acquisition of Common Shares by the Trust which, by reducing
the number of Common Shares outstanding, increases the proportionate
number of Common Shares beneficially owned by such Person to 15% or more
of the Common Shares of the Trust then outstanding, or (ii) the
acquisition by such Person of newly issued Common Shares directly from
the Trust (it being understood that a purchase from an underwriter or
other intermediary is not directly from the Trust); provided, however,
that if a Person shall become the Beneficial Owner of 15% or more of the
Common Shares of the



 









 






Trust then outstanding by reason of Common Share purchases by the Trust
or the receipt of newly issued Common Shares directly from the Trust and
shall, after such Common Share purchases or direct issuance by the Trust,
become the Beneficial Owner of any additional Common Shares of the Trust,
then such Person shall be deemed to be an “Acquiring Person”; provided
further, however, that any transferee from such Person who becomes the
Beneficial Owner of 15% or more of the Common Shares of the Trust then
outstanding shall nevertheless be deemed to be an “Acquiring Person.”
Notwithstanding the foregoing, if the Board of Trustees determines in
good faith that a Person who would otherwise be an “Acquiring Person,” as
defined pursuant to the foregoing provisions of this paragraph, has
become such inadvertently, and such Person divests as promptly as
practicable (and in any event within ten Business Days after notification
by the Trust) a sufficient number of Common Shares so that such Person
would no longer be an Acquiring Person, as defined pursuant to the
foregoing provisions of this paragraph, then such Person shall not be
deemed to be an “Acquiring Person” for any purposes of this Agreement.




     “Affiliate” and “Associate” shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act, as in effect on the date of this Agreement.




     “Agreement” shall have the meaning set forth in the preamble hereto.




     “Archstone” shall mean Archstone Communities Trust, a Maryland real
estate investment trust.




     A Person shall be deemed the “Beneficial Owner” of and shall be
deemed to have “beneficial ownership” of or to “beneficially own” any
securities:




     (i) which such Person or any of such Person’s Affiliates or
Associates beneficially owns, directly or indirectly;




     (ii) which such Person or any of such Person’s Affiliates or
Associates, directly or indirectly, has (A) the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, whether written or oral (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities, but only
to the extent such securities are held for a period consistent with
such a bona fide public offering), or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially
own, securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person’s
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; (B) the sole or shared right to
vote or dispose of (including any such right pursuant to any
agreement, arrangement or



2









 






understanding, whether written or oral); provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement or
understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or (C) “beneficial ownership” (as determined pursuant to
Rule 13d-3 (or any successor rule) of the General Rules and
Regulations under the Exchange Act); or




     (iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with
which such Person or any of such Person’s Affiliates or Associates
has any agreement, arrangement or understanding, whether written or
oral (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public
offering of securities, but only to the extent such securities are
held for a period consistent with such a bona fide public offering)
for the purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to clause (B) of subparagraph (ii) of
this definition) or disposing of any securities of the Trust.




     Notwithstanding anything in this definition of Beneficial Ownership
to the contrary, the phrase “then outstanding,” when used with reference
to the Beneficial Ownership of securities of the Trust by any Person,
shall mean the number of such securities then issued and outstanding
together with the number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.




     Notwithstanding anything in this definition of Beneficial Ownership
to the contrary, any “clearing agency,” as defined in Section 3(a)(23) of
the Exchange Act, which is holding securities solely in its capacity as a
clearing agency, shall not be deemed to be the Beneficial Owner of such
securities.




     “Business Day” shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in New York or New Jersey are
authorized or obligated by law or executive order to close.




     “Board of Trustees” shall have the meaning set forth in the preamble
hereto.




     “Close of business” on any given date shall mean 5:00 P.M., Eastern
time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Eastern time, on the next preceding
Business Day.



3









 






     “Common Shares” when used with no direct reference or with reference
to the Trust shall mean the common shares of beneficial interest, $0.01
par value per share, of the Trust. “Common Shares” when used with
reference to any Person other than the Trust shall mean the capital stock
(or equity interest) with the greatest voting power of such other Person
or the equity securities or other equity interest having power to control
or direct the management of such other Person.




     “Distribution Date” shall have the meaning set forth in Section 3
hereof.




     “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.




     “Exchange Ratio” shall have the meaning set forth in Section 24
hereof.




     “Expiration Date” shall have the meaning set forth in Section 7
hereof.




     “Final Expiration Date” shall have the meaning set forth in Section
7 hereof.




     “Merger Agreement” shall have the meaning set forth in the preamble
hereto.




     “NASDAQ” shall have the meaning set forth in Section 11(d)(i)
hereof.




     “NYSE” shall have the meaning set forth in Section 11(d)(i) hereof.




     “Person” shall mean any individual, firm, corporation, limited
liability company, partnership, trust or other entity, and shall include
any successor (by merger or otherwise) of such entity.




     “Preferred Shares” shall mean the Series B Junior Participating
Preferred Shares of Beneficial Interest, $0.01 par value per share, of
the Trust having the rights and preferences set forth on Exhibit A to
this Agreement.




     “Principal Party” shall have the meaning set forth in Section 13(b)
hereof.




     “Purchase Price” shall have the meaning set forth in Section 4
hereof.




     “Record Date” shall have the meaning set forth in the preamble
hereto.




     “Redemption Date” shall have the meaning set forth in Section 7
hereof.




     “Redemption Price” shall have the meaning set forth in Section 23
hereof.




     “Right” shall have the meaning set forth in the preamble hereto.




     “Rights Agent” shall have the meaning set forth in the preamble
hereto.




     “Right Certificate” shall have the meaning set forth in Section 3
hereof.



4









 






     “Securities Act” shall mean the Securities Act of 1933, as amended.




     “Shares Acquisition Date” shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) promulgated
under the Exchange Act) by the Trust or an Acquiring Person that an
Acquiring Person has become such.




     “Subsidiary” of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person. For purposes of this Agreement, Archstone shall be deemed a
Subsidiary of the Trust and each Subsidiary of Archstone shall likewise
be deemed a Subsidiary of the Trust.




     “Trading Day” shall have the meaning set forth in Section 11(d)(i)
hereof.




     “Triggering Event” shall mean any event described in Section
11(a)(ii) or Section 13(a) hereof.




     “Trust” shall have the meaning set forth in the preamble hereto.



     Any determination or interpretation required in connection with any of the
definitions contained in this Section 1 shall be made by the Board of Trustees
in their good faith judgment, which determination shall be final and binding on
the Rights Agent and on all shareholders of the Trust.



     Section 2. Appointment of Rights Agent. The Trust hereby appoints the
Rights Agent to act as agent for the Trust in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Trust may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable upon ten days’ prior written notice to the Rights Agent.
The Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such co-Rights Agent.



     Section 3. Issuance of Right Certificates.



     (a) Until the earlier of (i) the close of business on the tenth day after
the Shares Acquisition Date, (ii) the close of business on the fifteenth
Business Day (or such later date as may be determined by action of the Board of
Trustees prior to such time as any Person becomes an Acquiring Person) after
the date of the commencement by any Person (other than the Trust, any
Subsidiary of the Trust, any employee benefit plan of the Trust or of any
Subsidiary of the Trust or any entity holding Common Shares for or pursuant to
the terms of any such plan) of, or of the first public announcement of the
intention of any Person (other than the Trust, any Subsidiary of the Trust, any
employee benefit plan of the Trust or of any Subsidiary of the Trust or any
entity holding Common Shares for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which would result in
any Person becoming the Beneficial Owner of Common Shares aggregating 15% or
more of the then



5









 







outstanding Common Shares, or (iii) the close of business on the tenth
Business Day (or such later date as may be determined by action of the Board of
Trustees prior to such time as any Person becomes an Acquiring Person) after
the date of filing by any Person (other than the Trust, any Subsidiary of the
Trust, or any employee benefit plan of the Trust or any Subsidiary of the Trust
or any entity holding Common Shares for or pursuant to the terms of any such
Plan) of, or the first public announcement of the intention of any Person
(other than the Trust, any Subsidiary of the Trust, or any employee benefit
plan of the Trust or any Subsidiary of the Trust or any entity holding Common
Shares for or pursuant to the terms of any such Plan) to file, any application,
request, submission or other document with any federal or state regulatory
authority seeking approval of, attempting to rebut any presumption of control
upon, or otherwise indicating an intention to enter into, any transaction or
series of transactions the consummation of which would result in any Person
(other than the Trust, any Subsidiary of the Trust, or any employee benefit
plan of the Trust or any Subsidiary of the Trust or any entity holding Common
Shares for or pursuant to the terms of any such Plan) becoming the Beneficial
Owner of Common Shares aggregating 15% or more of the then outstanding Common
Shares, other than a transaction in which newly issued Common Shares are issued
directly by the Trust to such Person (including any such date which is after
the date of this Agreement and prior to the issuance of the Rights; the earlier
of such dates being herein referred to as the “Distribution Date”), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by
the certificates for Common Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be certificates for Rights)
and not by separate certificates, and (y) the Rights will be transferable only
in connection with the transfer of the underlying Common Shares (including a
transfer to the Trust). As soon as practicable after the Distribution Date,
the Trust will prepare and execute, the Rights Agent will countersign, and the
Trust will send or cause to be sent (and the Rights Agent, at the expense of
the Trust, will, if requested, send) by first-class, insured, postage-prepaid
mail, to each record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Trust, a Right Certificate, in substantially the form of Exhibit B hereto (a
“Right Certificate”), evidencing one Right for each Common Share so held. As
of the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.



     The Trust shall promptly notify the Rights Agent in writing upon the
occurrence of the Distribution Date and, if such notification is given orally,
the Trust shall confirm same in writing on or prior to the Business Day next
following. Until such notice is received by the Rights Agent, the Rights Agent
may presume conclusively for all purposes that the Distribution Date has not
occurred.



     (b) With respect to certificates for Common Shares outstanding as of the
Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof, and registered
holders of Common Shares shall also be the registered holders of the associated
Rights (regardless of whether such ownership is indicated on the Common Share
certificates). Until the earliest of the Distribution Date, the Redemption
Date or the Final Expiration Date, the transfer of any certificate for Common
Shares shall also constitute the transfer of the Rights associated with the
Common Shares represented thereby.



6









 





     (c) Rights shall be issued in respect of all Common Shares which are
issued (whether or not previously issued) after the Record Date but prior to
the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date. Certificates evidencing such Common Shares shall also be
deemed to be certificates for Rights. Certificates evidencing both Common
Shares and Rights in accordance with this Section 3 which are executed and
delivered (whether or not the Common Shares represented thereby were previously
issued or are presented for transfer) by the Trust (including, without
limitation, certificates representing reacquired Common Shares referred to in
the last sentence of this paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise affixed to
them a legend that by itself or together with prior legends is substantially to
the following effect:



This certificate also evidences and entitles the holder
hereof to certain rights as set forth in the Rights
Agreement between Archstone-Smith Trust (the “Trust”) and
Mellon Investor Services LLC, dated as of August 31, 2001
(the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on
file at the principal offices of the Trust. Under certain
circumstances, as set forth in the Rights Agreement, the
Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. The Trust will
mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without
charge promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is,
was or becomes an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, shall become null and
void.


Until the Distribution Date, the Rights associated with the Common Shares shall
be evidenced by the certificates evidencing the associated Common Shares alone
(regardless of whether any such certificate contains the above legend), and the
transfer of any such certificate shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby. In the event
that the Trust purchases or acquires any Common Shares after the Record Date
but prior to the Distribution Date, any Rights associated with such Common
Shares shall be deemed canceled and retired so that the Trust shall not be
entitled to exercise any Rights associated with the Common Shares which are no
longer outstanding.




     Section 4. Form of Right Certificates.



     (a) The Right Certificates (and the forms of election to purchase
Preferred Shares and of assignment to be printed on the reverse thereof) shall
be substantially the same as Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Trust may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or



7









 







with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Right Certificates shall entitle the holders thereof to
purchase such number of one one-hundredths of a Preferred Share as shall be set
forth therein at the price per one one-hundredth of a Preferred Share set forth
therein (the “Purchase Price”), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.



     (b) Any Right Certificate issued pursuant to Section 3(a) or Section 22
hereof that evidences Rights beneficially owned by: (i) an Acquiring Person or
any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or any Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes an Acquiring Person, or (iii) a transferee of an
Acquiring Person (or any Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any continuing
agreement, arrangement or understanding, whether written or oral, regarding the
transferred Rights or (B) a transfer which the Board of Trustees otherwise
concludes in good faith is part of a plan, arrangement or understanding,
whether written or oral, which has as a primary purpose or effect the avoidance
of Section 7(e) hereof, and any Right Certificate issued pursuant to Section 6
or Section 11 hereof upon the transfer, exchange, replacement or adjustment of
any other Right Certificate referred to in this sentence, shall contain (to the
extent feasible and otherwise reasonably identifiable as such) the following
legend:



The Rights evidenced by this Right Certificate are or were
beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Right Certificate and the
Rights evidenced hereby may become void in the circumstances
specified in Section 7(e) of such Agreement.


The provisions of Section 7(e) hereof shall apply whether or not any Right
Certificate actually contains the foregoing legend.




     Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Trust by its Chairman of the Board, Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, General
Counsel, any Division President, any Vice President, or its Secretary, either
manually or by facsimile signature, shall have affixed thereto the Trust’s seal
or a facsimile thereof, and shall be attested by the Secretary or an Assistant
Secretary of the Trust, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless countersigned. In case any officer of the
Trust who shall have signed any of the Right Certificates shall cease to be
such officer of the Trust before countersignature by the Rights Agent and
issuance and delivery by the Trust, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent and issued and delivered by the Trust with
the same force and effect as though the person



8









 







who signed such Right Certificates had not ceased to be such officer of
the Trust; and any Right Certificate may be signed on behalf of the Trust by
any person who, at the actual date of the execution of such Right Certificate,
shall be a proper officer of the Trust to sign such Right Certificate, although
at the date of the execution of this Rights Agreement any such person was not
such an officer.



     Following the Distribution Date, and receipt by the Rights Agent of notice
of the Distribution Date and such other necessary information as reasonably
requested by the Rights Agent, the Rights Agent will keep or cause to be kept,
at its office designated for such purpose, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates and the date
of each of the Right Certificates.



     Section 6. Transfer, Division, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
to the provisions of Sections 4(b), 7(e), 14 and 24 hereof, at any time after
the close of business on the Distribution Date, and at or prior to the close of
business on the earlier of the Redemption Date or the Final Expiration Date,
any Right Certificate or Right Certificates may be transferred, divided,
combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of Preferred Shares
(or, following a Triggering Event, Common Shares or other securities or
property, as the case may be) as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, divide, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to be
transferred, divided, combined or exchanged at the office of the Rights Agent
designated for such purpose. Neither the Rights Agent nor the Trust shall be
obligated to take any action whatsoever with respect to the transfer of any
such surrendered Right Certificate until the registered holder shall have
properly completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and the Trust shall
have been provided with such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Trust or Rights Agent shall reasonably request. Thereupon the
Rights Agent shall, subject to Sections 4 and 7 hereof, countersign and deliver
to the person entitled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Trust may require payment of a sum
sufficient to cover any tax or charge that may be imposed in connection with
any transfer, division, combination or exchange of Right Certificates. The
Rights Agent shall have no duty or obligation under this Section unless and
until it is reasonably satisfied that all such taxes and/or charges have been
paid or that adequate provision has been made for such payment.



     Upon receipt by the Trust and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Trust’s request,
reimbursement to the Trust and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if



9









 







mutilated, the Trust will make and deliver a new Right Certificate of like
tenor to the Rights Agent for countersignature and delivery to the registered
holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.



     Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.



     (a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent at the office of
the Rights Agent designated for such purpose, together with payment of the
Purchase Price with respect to each surrendered Right for the total number of
Preferred Shares (or Common Shares or other securities or property, as the case
may be) as to which the Rights are exercised, at or prior to the earliest of
(i) the close of business on August 31, 2011 (the “Final Expiration Date”),
(ii) the time at which the Rights are redeemed as provided in Section 23 hereof
(the “Redemption Date”), or (iii) the time at which such Rights are exchanged
by the Trust as provided in Section 24 hereof (the earliest to occur of the
events described in (i), (ii) and (iii) being herein referred to as the
“Expiration Date”).



     (b) The Purchase Price for each one one-hundredth of a Preferred Share
pursuant to the exercise of a Right shall initially be $75.00, shall be subject
to adjustment from time to time as provided in Sections 11 and 13 hereof and
shall be payable in lawful money of the United States of America in accordance
with paragraph (c) below.



     (c) Upon receipt of a Right Certificate evidencing exercisable Rights,
with the form of election to purchase and the certificate on the reverse side
of the Right Certificate duly executed, accompanied by payment of the Purchase
Price for the Preferred Shares (or Common Shares or other securities or
property, as the case may be) to be purchased and an amount equal to any
applicable tax or charge required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check, cashier’s
check or money order payable to the order of the Trust, the Rights Agent shall
thereupon promptly (i) (A) requisition from any transfer agent of the Preferred
Shares (or make available, if the Rights Agent is the transfer agent of the
Preferred Shares) certificates for the number of Preferred Shares to be
purchased and the Trust hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Trust shall have elected to
deposit the Preferred Shares issuable upon exercise of the Rights with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Preferred Share as are to
be purchased (in which case certificates for the Preferred Shares evidenced by
such receipts shall be deposited by the transfer agent therefor with the
depositary agent) and the Trust shall direct the depositary agent to comply
with such request, (ii) when appropriate, requisition from the Trust the amount
of cash to be paid in lieu of issuance of fractional shares in accordance with
Section 14 hereof, (iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt, deliver
such cash referred to in clause (ii) above to or upon the order of the
registered holder of such Right Certificate. In



10









 







the event that the Trust is obligated to issue other securities (including
Common Shares) of the Trust, pay cash and/or distribute other property pursuant
to Section 11(a) hereof, the Trust will make all arrangements necessary so that
such other securities, cash and/or property are available for distribution by
the Rights Agent, if and when appropriate.



     (d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate
or to his duly authorized assigns, subject to the provisions of Section 14
hereof.



     (e) Notwithstanding anything in this Agreement to the contrary, from and
after the occurrence of a Triggering Event, any Rights beneficially owned by
(i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes an
Acquiring Person, or (iii) a transferee of an Acquiring Person (or any
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming an Acquiring Person and receives such Rights
pursuant to either (x) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding, whether written or oral, regarding the
transferred Rights or (y) a transfer which the Board of Trustees otherwise
concludes in good faith is part of a plan, arrangement or understanding,
whether written or oral, which has as a primary purpose or effect the avoidance
of this Section 7(e), shall become null and void without any further action,
and any holder of such Rights shall thereupon have no rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise, from and after the occurrence of a Triggering Event. The Trust
shall use all reasonable efforts to ensure that the provisions of this Section
7(e) are complied with, but shall have no liability to any holder of Rights for
the inability to make any determinations with respect to an Acquiring Person or
its Affiliates, Associates or transferees hereunder.



     (f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Trust shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless the certificate contained in the form of
election to purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been properly completed and signed by
the registered holder thereof and the Trust shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Trust or the
Rights Agent shall reasonably request.



     (g) The Trust covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued Preferred Shares (and,
following the occurrence of a Triggering Event, Common Shares and/or other
securities), the number of Preferred Shares (and, following the occurrence of a
Triggering Event, Common Shares and/or other securities) that will be
sufficient to permit the exercise in full of all outstanding Rights.



11









 





     Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered for the purpose of exercise, transfer, division,
combination or exchange shall, if surrendered to the Trust or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Trust shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Trust otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Right Certificates to the Trust, or shall, at the written request
of the Trust, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Trust.



     Section 9. Availability of Preferred Shares. The Trust covenants and
agrees that it will take all such action as may be necessary to ensure that all
Preferred Shares (and, following the occurrence of a Triggering Event, Common
Shares and/or other securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such Preferred Shares (and, following
the occurrence of a Triggering Event, Common Shares and/or other securities),
subject to payment of the Purchase Price, be duly and validly authorized and
issued and fully paid and nonassessable.



     The Trust further covenants and agrees that it will pay when due and
payable any and all taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Preferred Shares (or
Common Shares and/or other securities, as the case may be) upon the exercise of
Rights. The Trust shall not, however, be required to pay any tax or charge
which may be payable in respect of any transfer or delivery of Right
Certificates to a person other than, or the issuance or delivery of
certificates or depositary receipts for the Preferred Shares (or Common Shares
and/or other securities, as the case may be) in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or to deliver any certificates or depositary receipts for
Preferred Shares (or Common Shares and/or other securities, as the case may be)
upon the exercise of any Rights until any such tax shall have been paid (any
such tax or charge being payable by the holder of such Right Certificate at the
time of surrender) or until it has been established to the Trust’s or Rights
Agent’s reasonable satisfaction that no such tax or charge is due.



     Section 10. Preferred Shares Record Date. Each person in whose name any
certificate for Preferred Shares (or Common Shares and/or other securities, as
the case may be) is issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of the shares or securities
represented thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and any applicable taxes or charges) was made;
provided, however, that if the date of such surrender and payment is a date
upon which the Preferred Shares (or Common Shares and/or other securities, as
the case may be) transfer books of the Trust are closed, such person shall be
deemed to have become the record holder of such shares or securities on, and
such certificate shall be dated, the next succeeding Business Day on which the
Preferred Shares (or Common Shares and/or other securities, as the case may be)
transfer books of the Trust are



12









 







open. Prior to the exercise of the Rights evidenced thereby, the holder
of a Right Certificate shall not be entitled to any rights of a holder of
Preferred Shares (or Common Shares and/or other securities, as the case may be)
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Trust, except as provided herein.



     Section 11. Adjustment of Purchase Price, Number of Shares or Number of
Rights. The Purchase Price, the number of Preferred Shares covered by each
Right and the number of Rights outstanding are subject to adjustment from time
to time as provided in this Section 11.




(a)      (i) In the event the Trust shall at any time after the date of this
Agreement (A) declare a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C)
combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any of its shares in a reclassification of
the Preferred Shares (including any such reclassification in connection
with a consolidation or merger in which the Trust is the continuing or
surviving entity), except as otherwise provided in this Section 11(a) and
Section 7(e) hereof, the Purchase Price in effect at the time of the
record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind
of shares issuable on such date, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to
receive the aggregate number and kind of shares which, if such Right had
been exercised immediately prior to such date and at a time when the
Preferred Shares transfer books of the Trust were open, he would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares
of the Trust issuable upon exercise of one Right. If an event occurs
which would require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.




     (ii) Subject to Section 24 hereof, in the event any Person becomes
an Acquiring Person, each holder of a Right, except as provided below and
in Section 7(e) hereof, shall thereafter have a right to receive, upon
exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Common Shares
of the Trust as shall equal the result obtained by (A) multiplying the
then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the
Trust’s Common Shares (determined pursuant to Section 11(d) hereof) on
the date of the occurrence of such event. In the event that any Person
shall become an Acquiring Person and the Rights shall then be
outstanding, the Trust shall not take any action which would eliminate or
diminish the benefits intended to be afforded by the Rights.



13









 






     (iii) In lieu of issuing Common Shares of the Trust in accordance
with Section 11(a)(ii) hereof, the Trust may, in the sole discretion of
the Board of Trustees, elect to (and, in the event that the Board of
Trustees has not exercised the exchange right contained in Section 24
hereof and there are not sufficient issued but not outstanding and
authorized but unissued Common Shares to permit the exercise in full of
the Rights in accordance with Section 11(a)(ii) hereof, the Trust shall)
take all such action as may be necessary to authorize, issue or pay, upon
the exercise of the Rights, cash (including by way of a reduction of the
Purchase Price), property, other securities or any combination thereof
having an aggregate value equal to the value of the Common Shares of the
Trust which otherwise would have been issuable pursuant to Section
11(a)(ii) hereof, which aggregate value shall be determined by a majority
of the Board of Trustees. For purposes of the preceding sentence, the
value of the Common Shares shall be determined pursuant to Section 11(d)
hereof and the value of any equity securities which a majority of the
Board of Trustees determines to be equivalent to a Common Share
(including the Preferred Shares, in such ratio as the Board of Trustees
shall determine) shall be deemed to have the same value as the Common
Shares. Any such election by the Board of Trustees must be made and
publicly announced within 60 days following the date on which the event
described in Section 11(a)(ii) hereof shall have occurred. Following the
occurrence of the event described in Section 11(a)(ii) hereof, a majority
of the Board of Trustees then in office may suspend the exercisability of
the Rights for a period of up to 60 days following the date on which the
event described in Section 11(a)(ii) hereof shall have occurred to the
extent that the Board of Trustees has not determined whether to exercise
the Trust’s right of election under this Section 11(a)(iii). In the
event of any such suspension, the Trust shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended. The Trust shall notify the Rights Agent whenever it makes a
public announcement pursuant this Section 11(a)(iii) and give the Rights
Agent a copy of such announcement.



     (b) In case the Trust shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe
for or purchase Preferred Shares (or shares having the same rights, privileges
and preferences as the Preferred Shares (“equivalent preferred shares”)) or
securities convertible into Preferred Shares or equivalent preferred shares at
a price per Preferred Share or equivalent preferred share (or having a
conversion price per share, if a security convertible into Preferred Shares or
equivalent preferred shares) less than the then current per share market price
of the Preferred Shares (as defined in Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
Preferred Shares outstanding on such record date plus the number of Preferred
Shares which the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and the denominator of
which shall be the number of Preferred Shares outstanding on such record date
plus the number of additional Preferred Shares and/or equivalent preferred



14









 







shares to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible); provided,
however, that in no event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the shares of the Trust
issuable upon exercise of one Right. In case such subscription price is paid
in a consideration part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board
of Trustees, whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and on the holders of
the Rights. Preferred Shares owned by or held for the account of the Trust
shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which would then be
in effect if such record date had not been fixed.



     (c) In case the Trust shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Trust is the continuing or surviving entity) of evidences of indebtedness or
assets (other than a regular periodic cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the then current per share market price of the Preferred Shares on
such record date, less the fair market value (as determined in good faith by
the Board of Trustees, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
attributable to one Preferred Share and the denominator of which shall be such
current per share market price (as such term is defined in Section 11(d)(i)
hereof) of the Preferred Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of the Trust to be issued upon exercise of
one Right. Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.



     (d)      (i) For the purpose of any computation hereunder, other than under
Section 11(a)(iii) hereof, the “current per share market price” of any security
(a “Security” for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of such Security
for the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date, and for the purpose of any computation under
Section 11(a)(iii) hereof, the “current per share market price” of a Security
on any date shall be deemed to be the average of the daily closing prices per
share of such Security for thirty (30) consecutive Trading Days immediately
following such date; provided, however, that in the event that the current per
share market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or distribution
on such Security payable in shares of such Security or securities convertible
into such shares (other than the Rights), or (B) any subdivision, combination
or reclassification of such Security and



15









 







prior to the expiration of 30 Trading Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the “current per
share market price” shall be appropriately adjusted to reflect the current
market price per share equivalent (ex-dividend) of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on The New York Stock Exchange (the “NYSE”) or, if the Security is not
listed or admitted to trading on the NYSE, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System (“NASDAQ”) or such other system then in use, or, if
on any such date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Security selected by the Board of Trustees.
If on any such date no market maker is making a market in the Security, the
fair value of such Security on such date as determined in good faith by the
Board of Trustees shall be used, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
The term “Trading Day” shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to trading is
open for the transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a Business Day.



          (ii) For the purpose of any computation hereunder, the “current per share
market price” of the Preferred Shares shall be determined in accordance with
the method set forth in Section 11(d)(i) hereof. If the Preferred Shares are
not publicly traded, the “current per share market price” of the Preferred
Shares shall be conclusively deemed to be the current per share market price of
the Common Shares of the Trust as determined pursuant to Section 11(d)(i)
hereof (appropriately adjusted to reflect any share split, share dividend or
similar transaction occurring after the date hereof), multiplied by one
hundred. If neither the Common Shares of the Trust nor the Preferred Shares
are publicly held or so listed or traded, “current per share market price”
shall mean the fair value per share as determined in good faith by the Board of
Trustees, whose determination shall be described in a statement filed with the
Rights Agent, or, if at the time of such determination there is an Acquiring
Person, by a majority of the members of the Board of Trustees then in office,
whose determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.



     (e) Anything herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one one-millionth of a Preferred Share or one
ten-thousandth of any other share



16









 







or security, as the case may be. Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the transaction
which requires such adjustment or (ii) the date of the expiration of the right
to exercise any Rights.



     (f) If as a result of an adjustment made pursuant to Section 11(a) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of the Trust other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Shares contained in this Section 11, and the provisions of Sections
7, 9, 10, 13 and 14 hereof with respect to the Preferred Shares shall apply on
like terms to any such other shares.



     (g) All Rights originally issued by the Trust subsequent to any adjustment
made to the Purchase Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of one one-hundredths of a Preferred
Share purchasable from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.



     (h) Unless the Trust shall have exercised its election as provided in
Section 11(i) hereof, upon each adjustment of the Purchase Price as a result of
the calculations made in Sections 11(b) and (c) hereof, each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of one
one-hundredths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (i) multiplying (A) the number
of one one-hundredths of a Preferred Share covered by a Right immediately prior
to such adjustment by (B) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.



     (i) The Trust may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-hundredths of a Preferred Share purchasable
upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Trust shall make a public announcement of its election to adjust
the number of Rights (with prompt written notice thereof to the Rights Agent),
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Trust
shall, as promptly as practicable, cause to be distributed to holders of



17









 







record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the option of
the Trust, shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Trust, new Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.



     (j) Irrespective of any adjustment or change in the Purchase Price or the
number of one one-hundredths of a Preferred Share issuable upon the exercise of
the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one one-hundredths of
a Preferred Share which were expressed in the initial Right Certificates issued
hereunder.



     (k) Before taking any action that would cause an adjustment reducing the
Purchase Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Trust shall take any
action which may, in the opinion of its counsel, be necessary in order that the
Trust may validly and legally issue fully paid and nonassessable Preferred
Shares at such adjusted Purchase Price.



     (l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Trust may elect to defer (with prompt written notice thereof to the
Rights Agent) until the occurrence of such event the issuance to the holder of
any Right exercised after such record date of the Preferred Shares and other
securities of the Trust, if any, issuable upon such exercise over and above the
Preferred Shares and other securities of the Trust, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Trust shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.



     (m) Anything in this Section 11 to the contrary notwithstanding, the Trust
shall be entitled to make such reductions in the Purchase Price, in addition to
those adjustments expressly required by this Section 11, as and to the extent
that it in its sole discretion shall determine to be advisable in order that
any consolidation or subdivision of the Preferred Shares, issuance wholly for
cash of any Preferred Shares at less than the current market price, issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, dividends on Preferred
Shares payable in Preferred Shares or issuance of rights, options or warrants
referred to hereinabove in Section 11(b) hereof, hereafter made by the Trust to
holders of its Preferred Shares shall not be taxable to such shareholders.



     (n) In the event that at any time after the date of this Agreement and
prior to the Distribution Date, the Trust shall (i) declare or pay any dividend
on the Common Shares payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common



18









 







Shares (by reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common Shares, then in any
such case (x) the number of one one-hundredths of a Preferred Share purchasable
after such event upon proper exercise of each Right shall be determined by
multiplying the number of one one-hundredths of a Preferred Share so
purchasable immediately prior to such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately before such event
and the denominator of which is the number of Common Shares outstanding
immediately after such event, and (y) each Common Share outstanding immediately
after such event shall have issued with respect to it that number of Rights
which each Common Share outstanding immediately prior to such event had issued
with respect to it. The adjustments provided for in this Section 11(n) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.



     (o) So long as the shares issuable upon the exercise of the Rights may be
listed on any national securities exchange, the Trust shall use its best
efforts to cause, from and after such time as the Rights become exercisable,
all shares reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.



     (p) The Trust shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of a Triggering Event, a
registration statement under the Securities Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act) until
the date of the expiration of the Rights. The Trust will also take such action
as may be appropriate under the blue sky laws of the various states. The Trust
may temporarily suspend, for a period of time not to exceed 90 days, the
exercisability of the Rights in order to prepare and file such registration
statement or in order to comply with such blue sky laws. Upon any such
suspension, the Trust shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended (with prompt
written notice thereof to the Rights Agent).



     Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment occurs as provided in Section 11 or 13 hereof, the Trust
shall promptly (a) prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares or the
Preferred Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 25
hereof. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall have no duty or
liability with respect to, and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received such certificate.



     Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.



     (a) If after the Shares Acquisition Date, directly or indirectly, (x) the
Trust shall consolidate with, or merge with and into, any other Person, (y) any
Person shall consolidate with



19









 







the Trust, or merge with and into the Trust and the Trust shall be the
continuing or surviving entity of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed into or exchanged for
stock or other securities of any other Person (or the Trust) or cash or any
other property, or (z) the Trust shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or
earning power of the Trust and its Subsidiaries (taken as a whole) to any
Person or Persons other than the Trust or one or more of its wholly-owned
Subsidiaries, then, and in each such case, proper provision shall be made so
that (i) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of validly authorized and issued, fully paid, non-assessable and
freely tradeable common shares of the Principal Party (as hereinafter defined),
free and clear of all liens, rights of call or first refusal, encumbrances or
other adverse claims, as shall equal the result obtained by (A) multiplying the
then current Purchase Price by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable (or, if such Right is not then
exercisable for a number of one one-hundredths of a Preferred Share, the number
of such fractional shares for which it was exercisable immediately prior to an
event described under Section 11(a)(ii) hereof) and dividing that product by
(B) 50% of the then current per share market price of the common shares of such
Principal Party (determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, or otherwise, all the obligations
and duties of the Trust pursuant to this Agreement; (iii) the term “Trust”
shall thereafter be deemed to refer to such Principal Party; and (iv) such
Principal Party shall take such steps (including, but not limited to, the
authorization and reservation of a sufficient number of its common shares in
accordance with Section 9 hereof) in connection with such consummation as may
be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its common shares
thereafter deliverable upon the exercise of the Rights.



     (b) “Principal Party” shall mean:




     (i) In the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a) hereof, the Person that is the issuer of
any securities into which Common Shares of the Trust are converted in
such merger or consolidation, and if no securities are so issued, the
Person that is the surviving entity of such merger or consolidation
(including the Trust if applicable); and




     (ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a) hereof, the Person that is the party receiving
the greatest portion of the assets or earning power transferred pursuant
to such transaction or transactions;


provided, however, that in any such case described in clauses (b)(i) and
(b)(ii) above: (1) if the common shares of such Person are not at such time
and have not been continuously over the


20









 






preceding 12-month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect Subsidiary of another Person the common
shares of which are and have been so registered, “Principal Party” shall refer
to such other Person; (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the common shares of two or more of which
are and have been so registered, “Principal Party” shall refer to whichever of
such Persons is the issuer of the common shares having the greatest aggregate
market value; and (3) in case such Person is owned, directly or indirectly, by
a joint venture formed by two or more Persons that are not owned, directly or
indirectly, by the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in such joint
venture as if such party were a “Subsidiary” of both or all of such joint
venturers and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio as their direct or
indirect interests in such Person bear to the total of such interests.




     (c) The Trust shall not consummate any such consolidation, merger, sale or
transfer unless the Principal Party shall have sufficient common shares
authorized to permit the full exercise of the Rights and prior thereto the
Trust and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of assets
mentioned in paragraph (a) of this Section 13, the Principal Party will:




     (i) prepare and file a registration statement under the Securities
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date;




     (ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all respects with the requirements for registration on Form 10
under the Exchange Act; and




     (iii) take such actions as may be necessary or appropriate under
the blue sky laws of the various states.


The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that one of the
transactions described in this Section 13(a) shall occur at any time after the
occurrence of a transaction described in Section 11(a)(ii) hereof, the Rights
which have not theretofore been exercised shall thereafter become exercisable
in the manner described in Section 13(a) hereof.




     Section 14. Fractional Rights and Fractional Shares.



     (a) The Trust shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there may be



21









 







paid to the registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a whole Right. For
the purposes of this Section 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day immediately prior
to the date on which such fractional Rights would have been otherwise issuable.
The closing price for any day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if the Rights are not listed or admitted to
trading on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading or,
if the Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by NASDAQ
or such other system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
Rights selected by the Board of Trustees. If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on such
date as determined in good faith by the Board of Trustees shall be used or, if
at the time of such determination there is an Acquiring Person, by a majority
of the members of the Board of Trustees then in office, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.



     (b) The Trust shall not be required to issue fractions of Preferred Shares
(other than fractions which are integral multiples of one one-hundredth of a
Preferred Share) upon exercise of the Rights or to distribute certificates
which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredth of a Preferred
Share may, at the election of the Trust, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Trust and a depositary
selected by it; provided, that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional Preferred
Shares that are not integral multiples of one one-hundredth of a Preferred
Share, the Trust may, to the extent necessary to reduce such fraction to an
integral multiple of one one-hundredth, pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one
one-hundredth of a Preferred Share. For the purposes of this Section 14(b),
the current market value of one one-hundredth of a Preferred Share shall be one
one-hundredth of the closing price of a Preferred Share (as determined pursuant
to the second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.



     (c) Following the occurrence of a Triggering Event, the Trust shall not be
required to issue fractions of Common Shares upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares. In lieu of
fractional Common Shares, the Trust may pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein



22









 







provided an amount in cash equal to the same fraction of the current
market value of one Common Share. For purposes of this Section 14(c), the
current market value of one Common Share shall be the closing price of one
Common Share (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such exercise.



     (d) The holder of a Right by the acceptance of the Right expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above). The Rights Agent shall have no
duty or obligation with respect to this Section 14 and Section 24 below unless
and until it has received specific instructions (and sufficient cash to make
payments in lieu of issuing fractional shares, if required) from the Trust with
respect to its duties or obligations under such Sections.



     Section 15. Rights of Action. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the Rights Agent or of the holder of any other Right Certificate (or, prior to
the Distribution Date, of the Common Shares), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Trust to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.



     Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Trust and the Rights Agent and
with every other holder of a Right that:



     (a) prior to the Distribution Date, the Rights will be transferable only
in connection with the transfer of the Common Shares;



     (b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the principal
office of the Rights Agent, duly endorsed or accompanied by a proper instrument
of transfer;



     (c) the Trust and the Rights Agent may deem and treat the person in whose
name the Right Certificate (or, prior to the Distribution Date, the associated
Common Shares certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Shares certificate
made by anyone other than the Trust or the Rights Agent) for all purposes
whatsoever, and neither the Trust nor the Rights Agent shall be affected by any
notice to the contrary; and



23









 





     (d) notwithstanding anything in this Agreement to the contrary, neither
the Trust nor the Rights Agent shall have any liability to any holder of a
Right or any other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, judgment, decree or ruling (whether interlocutory or
final) issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority prohibiting or otherwise restraining performance of such obligation.



     Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
any other securities of the Trust which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Trust or any
right to vote for the election of trustees or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
trust action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.



     Section 18. Concerning the Rights Agent. The Trust agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the preparation, delivery,
amendment, administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Trust also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, damage,
judgment, fine, penalty, claim, demand, settlement, cost or expenses
(including, without limitation, the reasonable fees and expenses of legal
counsel), incurred without gross negligence, bad faith or willful misconduct on
the part of the Rights Agent for any action taken, suffered or omitted by the
Rights Agent in connection with the acceptance, administration, exercise and
performance of this Agreement, including the costs and expenses of defending
against any claim of liability in the premises. The costs and expenses
incurred in enforcing this right of indemnification shall be paid by the Trust.
The provisions of this Section 18 and Section 20(c) below shall survive the
termination of this Agreement, the exercise or expiration of the Rights or the
resignation or removal of the Rights Agent.



     The Rights Agent shall be authorized and protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its acceptance and administration of this Agreement and the
exercise and performance of its duties hereunder in reliance upon any Right
Certificate or certificate for the Preferred Shares or Common Shares or for
other securities of the Trust, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified



24









 







or acknowledged, by the proper person or persons, or otherwise upon the
advice of counsel as set forth in Section 20 hereof.



     Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any Person succeeding to the stock transfer business of
the Rights Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, that
such Person would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered; any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.



     In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, the Rights Agent
may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.



     Section 20. Rights and Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations expressly imposed by this Agreement (and
no implied duties) upon the following terms and conditions, by all of which the
Trust and the holders of Right Certificates, by their acceptance thereof, shall
be bound:



     (a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Trust or legal counsel for the Rights Agent), and the opinion
of such counsel shall be full and complete authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability for or in respect of
any action taken, suffered or omitted by it in good faith and in accordance
with such opinion.



     (b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of the current per share market price) be proved or established
by the Trust prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by any one of the



25









 







Chairman of the Board, Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, General Counsel, any Division President, any Vice
President, or the Secretary of the Trust and delivered to the Rights Agent; and
such certificate shall be full and complete authorization to the Rights Agent
and the Rights Agent shall incur no liability for or in respect of any action
taken, suffered or omitted in good faith by it under the provisions of this
Agreement in reliance upon such certificate.



     (c) The Rights Agent shall be liable hereunder to the Trust and any other
Person only for its own gross negligence, bad faith or willful misconduct.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, punitive, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited to
lost profits), even if the Rights Agent has been advised of the likelihood of
such loss or damage and regardless of the form of the action.



     (d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Trust only.



     (e) The Rights Agent shall not have any liability for or be under any
responsibility in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Trust of any covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the exercisability
of the Rights (including the Rights becoming void pursuant to Section 7(e)
hereof) or any adjustment in the terms of the Rights (including the manner,
method or amount thereof) provided for in Sections 3, 11, 13, 23 or 24 hereof,
or the ascertaining of the existence of facts that would require any such
change or adjustment (except with respect to the exercise of Rights evidenced
by Right Certificates after receipt of a certificate furnished pursuant to
Section 12 hereof describing a change or adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares or Common Shares to be
issued pursuant to this Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares will, when issued, be validly authorized and
issued, fully paid and nonassessable.



     (f) The Trust agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.



     (g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, General Counsel, any Division President, any
Vice President, or the Secretary of the Trust, and to apply to such



26









 







officers for advice or instructions in connection with its duties, and
such instructions or advice shall be full and complete authorization and
protection and the Rights Agent shall not be liable for any action taken,
suffered or omitted by it in good faith in accordance with such advice or
instructions of any such officer or for any delay in acting while waiting for
those instructions. Any application by the Rights Agent for written
instructions from the Trust may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken, suffered or omitted by the Rights
Agent under this Agreement and the date on and/or after which such action shall
be taken or suffered or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, suffered by, or omission of, the
Rights Agent in accordance with a proposal included in any such application on
or after the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Trust actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking or suffering any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken, suffered or omitted.



     (h) The Rights Agent and any stockholder, affiliate, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Trust or its Subsidiaries or become pecuniarily
interested in any transaction in which the Trust or its Subsidiaries may be
interested, or contract with or lend money to the Trust or its Subsidiaries or
otherwise act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent or any such
stockholder, affiliate, director, officer or employee from acting in any other
capacity for the Trust or its Subsidiaries or for any other Person.



     (i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself (through its
directors, officers and employees) or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or for any loss
to the Trust resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued
employment thereof.



     (j) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the Trust.



     (k) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.



27









 





     Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days’ notice in writing mailed to the Trust and to each transfer agent
of the Common Shares or Preferred Shares by registered or certified mail, and
to the holders of the Right Certificates by first-class mail. The Trust may
remove the Rights Agent or any successor Rights Agent upon 30 days’ notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Trust shall appoint a successor to
the Rights Agent. If the Trust shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Trust),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Trust or by such a court,
shall be a Person or bank organized and doing business under the laws of the
United States or of any other state of the United States, which is authorized
under such laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $100 million. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without further act or deed;
but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment the Trust
shall file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares or Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.



     Section 22. Issuance of New Right Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Trust
may, at its option, issue new Right Certificates evidencing Rights in such form
as may be approved by the Board of Trustees to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.



     Section 23. Redemption.



     (a) The Board, by the affirmative vote of the Board of Trustees, may, at
its option, at any time prior to such time as any Person becomes an Acquiring
Person, redeem all but not less than all the then outstanding Rights at a
redemption price of $0.001 per Right, appropriately adjusted to reflect any
share split, share dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the “Redemption
Price”). The



28









 







preceding sentence notwithstanding, prior to the expiration of the period
during which the Rights may be redeemed as specified therein (or such longer
period as the Board of Trustees of the Trust may select pursuant to this
sentence), the Board of Trustees of the Trust may extend, one or more times,
the period during which the Rights may be redeemed beyond the close of business
on the tenth day following the Shares Acquisition Date. The Trust may, at its
option, pay the Redemption Price in cash, Common Shares (based on the current
per share market price of the Common Shares at the time of redemption) or any
other form of consideration deemed appropriate by the Board of Trustees. The
redemption of the Rights by the Board of Trustees may be made effective at such
time on such basis and with such conditions as the Board of Trustees in its
sole discretion may establish.



     (b) Immediately upon the action of the Board of Trustees ordering the
redemption of the Rights (or at the effective time of such redemption
established by the Board of Trustees pursuant to the last sentence of
paragraph (a) of this Section 23), and without any further action and without
any notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price.
The Trust shall promptly give public notice of any such redemption (with prompt
written notice thereof to the Rights Agent); provided, however, that the
failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within 10 days after such action of the Board of
Trustees ordering the redemption of the Rights or, if later, the effectiveness
of the redemption of the Rights pursuant to the last sentence of paragraph (a),
the Trust shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. The Trust may, at its
option, discharge all of its obligations with respect to the Rights by (i)
issuing a press release announcing the manner of redemption of the Rights, (ii)
depositing with a bank or trust company having a capital and surplus of at
least $100,000,000, funds necessary for such redemption, in trust, to be
applied to the redemption of the Rights so called for redemption and (iii)
arranging for the mailing of the Redemption Price to the registered holders of
the Rights; then, and upon such action, all outstanding Right Certificates
shall be null and void without further action by the Trust. Neither the Trust
nor any of its Affiliates or Associates may redeem, acquire or purchase for
value any Rights at any time in any manner other than that specifically set
forth in this Section 23, in Section 24 hereof, or in connection with the
purchase of Common Shares prior to the Distribution Date.



     Section 24. Exchange.



     (a) The Board of Trustees may, at its option, at any time after a
Triggering Event, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 7(e) hereof) for Common Shares at an exchange ratio of
one Common Share per Right, appropriately adjusted to reflect any share split,
share dividend or similar transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the “Exchange Ratio”).
Notwithstanding the



29









 







foregoing, the Board of Trustees shall not be empowered to effect such
exchange at any time after any Person (other than the Trust, any Subsidiary of
the Trust, any employee benefit plan of the Trust or of any Subsidiary of the
Trust or any entity holding Common Shares for or pursuant to the terms of any
such plan), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50% or more of the Common Shares then outstanding.



     (b) Immediately upon the action of the Board of Trustees ordering the
exchange of any Rights pursuant to paragraph (a) of this Section 24 and without
any further action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such Rights shall
be to receive that number of Common Shares equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Trust shall promptly
give public notice of any such exchange (with prompt written notice thereof to
the Rights Agent); provided, however, that the failure to give, or any defect
in, such notice shall not affect the validity of such exchange. The Trust
promptly shall mail a notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the Common
Shares for Rights will be effected and, in the event of any partial exchange,
the number of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights which have
become null and void pursuant to the provisions of Section 7(e) hereof) held by
each holder of Rights.



     (c) In any exchange pursuant to this Section 24, the Trust, at its option,
may substitute Preferred Shares (or equivalent preferred shares, as such term
is defined in Section 11(b) hereof) for Common Shares exchangeable for Rights,
at the initial rate of one one-hundredth of a Preferred Share (or equivalent
preferred share) for each Common Share, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Shares pursuant to the terms
thereof, so that the fraction of a Preferred Share delivered in lieu of each
Common Share shall have the same voting rights as one Common Share.



     (d) In the event that there shall not be sufficient Common Shares or
Preferred Shares issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this Section
24, the Trust shall take all such action as may be necessary to authorize
additional Common Shares or Preferred Shares for issuance upon exchange of the
Rights.



     (e) The Trust shall not be required to issue fractions of Common Shares or
to distribute certificates which evidence fractional Common Shares. In lieu of
such fractional Common Shares, the Trust shall pay to the registered holders of
the Right Certificates with regard to which such fractional Common Shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share. For the purposes of this
paragraph (e), the current market value of a whole Common Share shall be the
closing price of a Common Share (as determined pursuant to the second sentence
of Section



30









 







11(d)(i) hereof) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 24.



     Section 25. Notice of Certain Events.



     (a) In case the Trust shall propose at any time after the Distribution
Date (i) to pay any dividend payable in shares of any class to the holders of
its Preferred Shares or to make any other distribution to the holders of its
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Shares rights or warrants to subscribe for or
to purchase any additional Preferred Shares or shares of any class or any other
securities, rights or options, (iii) to effect any reclassification of its
Preferred Shares (other than a reclassification involving only the subdivision
of outstanding Preferred Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Trust and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Trust, or (vi) to declare or pay
any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Trust shall give to the Rights Agent and each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice
of such proposed action, which shall specify the record date for the purposes
of such share dividend, or distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or Preferred
Shares, if any such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at least 10 days
prior to the record date for determining holders of the Preferred Shares for
purposes of such action, and in the case of any such other action, at least 10
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares and/or Preferred
Shares, whichever shall be the earlier.



     (b) In case any of the events set forth in Section 11(a)(ii) hereof shall
occur, then the Trust shall as soon as practicable thereafter give to the
Rights Agent and each holder of a Right Certificate, in accordance with Section
26 hereof, a notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.



     Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Trust shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:


Archstone-Smith Trust

9200 E. Panorama Circle

Englewood, Colorado 80112

Attention: General Counsel



31









 





     Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Trust or by the holder
of any Right Certificate to or on the Rights Agent shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Trust) as follows:


Mellon Investor Services LLC

600 North Pearl Street, Suite 1010

Dallas, Texas 75201-2884

Attention: _________________


With a copy to:


Mellon Investor Services LLC

85 Challenger Road

Ridgefield Park, NJ 07660

Attention: General Counsel


Notices or demands authorized by this Agreement to be given or made by the
Trust or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Trust. Notices or demands sent by mail in accordance with this
Section 26 shall be deemed given or made three Business Days after the date on
which they are sent.




     Section 27. Supplements and Amendments. The Trust, by the affirmative
vote of the Board of Trustees, may from time to time supplement or amend this
Agreement without the approval of any holders of Right Certificates in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make or change any other provisions with respect to the Rights (including,
without limitation, changes to the Purchase Price) which the Trust may deem
necessary or desirable, any such supplement or amendment to be evidenced by a
writing signed by the Trust and the Rights Agent; provided, however, that from
and after such time as any Person becomes an Acquiring Person, this Agreement
shall not be amended in any manner which would adversely affect the interests
of the holders of Rights. Notwithstanding anything in this Agreement to the
contrary, no supplement or amendment that changes the rights and duties of the
Rights Agent under this Agreement will be effective against the Rights Agent
without the execution of such supplement or amendment by the Rights Agent.



     Section 28. General Limitations on Redemption, Modification or
Termination of Rights or Amendment to Agreement. Notwithstanding any provision
of this Agreement to the contrary, in addition to any other approval that may
be necessary, any redemption, modification or termination of the Rights, or any
amendment to this Agreement, requiring the approval of the Board of Trustees
must be approved by a majority of the members of the Board of Trustees.



32









 





     Section 29. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Trust or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.



     Section 30. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Trust, the Rights Agent and
the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Trust, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Common
Shares).



     Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.



     Section 32. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Maryland and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State, except that those provisions of this
Agreement affecting the rights, duties and responsibilities of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State.



     Section 33. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.



     Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.



     Section 35. Determinations and Actions by the Board of Trustees. The
Board of Trustees shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to
the Board of Trustees or the Trust or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (a) interpret the provisions of this Agreement, and (b) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend this Agreement). All such actions, interpretations and determinations
(including, for purpose of clause (b) above, all omissions with respect to the
foregoing) which are done or made by the Board of Trustees in good faith, shall
(x) be final, conclusive and binding on the Trust, the Rights Agent, the
holders of the Right Certificates and all other parties, and (y) not subject
the Board of Trustees to any liability to the holders of the Right
Certificates. The Rights Agent shall be entitled to assume



33









 







that the Board of Trustees has acted in good faith with respect to any
such actions, interpretations and determinations.



     Section 36. Limitation of Liability. Any obligation or liability
whatsoever of the Trust which may arise at any time under this Agreement or any
obligation or liability which may be incurred by it pursuant to any other
instrument, transaction or undertaking contemplated hereby shall be satisfied,
if at all, out of the Trust’s assets only. To the maximum extent permissible
under Maryland law, no such obligation or liability shall be personally binding
upon, nor shall resort for the enforcement thereof had to, the property of any
of its shareholders, Trustees, officers, employees or agents, regardless of
whether such obligations or liability is in the nature of contract, tort or
otherwise.



34









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.


	 	 	 	 	 
	 	ARCHSTONE-SMITH TRUST

 	 
	 	By:  	/s/ Caroline Brower
 	 
	 	 	Caroline Brower 	 
	 	 	General Counsel and Secretary 	 
	 



	 	 	 	 	 
	 	Attest:

 	 
	 	By:  	/s/ Thomas S. Reif
 	 	 
	 	 	Thomas S. Reif 	 
	 	 	Assistant Secretary 	 
	 



	 	 	 	 	 
	 	MELLON INVESTOR SERVICES LLC

 	 
	 	By:  	/s/ Cindy Bennett
 	 
	 	 	Name:  	Cindy Bennett 	 
	 	 	Title:  	Client Service Manager 	 
	 



	 	 	 	 	 	 
	 	Attest:

 	 
	 	By:  	       /s/ David Cary
 	 	 
	 	 	Name:  	David Cary 	 
	 	 	Title:  	Vice President 	 
	 





35









 





Exhibit A




SERIES B JUNIOR PARTICIPATING PREFERRED SHARES

OF BENEFICIAL INTEREST




     (a) Designation and Amount. There shall be a series of preferred shares
of the Trust, $0.01 par value per share, which shall be designated “Series B
Junior Participating Preferred Shares” (the “Series B Preferred Shares”), and
the number of shares constituting that series shall be 4,500,000. Such number
of shares may be increased or decreased by resolution of the Board of Trustees
and by the filing of articles supplementary in accordance with the provisions
of Title 8 of the Corporations and Associations Article of the Code of Maryland
stating that such increase or reduction has been so authorized; provided,
however, that no decrease shall reduce the number of Series B Preferred Shares
to a number less than the number of Series B Preferred Shares then outstanding
plus the number of Series B Preferred Shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Trust.



     (b) Dividends and Distributions.



     (i) Subject to the prior and superior rights of the holders of any shares
of any class or series of preferred shares of the Trust ranking prior and
superior to the Series B Preferred Shares with respect to dividends, the
holders of Series B Preferred Shares shall be entitled to receive, when, as and
if declared by the Board of Trustees out of funds legally available for the
purpose, quarterly dividends payable in cash to holders of record on the last
Business Day of January, April, July and October in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a Series
B Preferred Share or fraction thereof, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in Common Shares (hereinafter defined) or a subdivision of the
outstanding Common Shares (by a reclassification or otherwise), authorized on
the common shares of beneficial interest, $0.01 par value per share, of the
Trust (the “Common Shares”) since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any Series B Preferred Share or fraction thereof.
In the event the Trust shall at any time following August 31, 2001 (i) declare
any dividend on Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the amount to which holders of
Series B Preferred Shares were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying each such
amount by a fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.



36









 





     (ii) The Trust shall declare a dividend or distribution on the Series B
Preferred Shares as provided in paragraph (A) above at the time it declares a
dividend or distribution on the Common Shares (other than a dividend payable in
Common Shares).



     (iii) No dividend or distribution (other than a dividend or distribution
payable in Common Shares) shall be paid or payable to the holders of Common
Shares unless, prior thereto, all accrued but unpaid dividends to the date of
that dividend or distribution shall have been paid to the holders of Series B
Preferred Shares.



     (iv) Dividends shall begin to accrue and be cumulative on outstanding
Series B Preferred Shares from the Quarterly Dividend Payment Date next
preceding the date of issuance of such Series B Preferred Shares, unless the
date of issuance of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issuance of such shares, or
unless the date of issuance is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of Series B Preferred
Shares entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the Series B
Preferred Shares in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Trustees may fix a record date for the determination of holders of Series B
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.



     (c) Voting Rights. The holders of Series B Preferred Shares shall have
the following voting rights:



     (A) Subject to the provision for adjustment hereinafter set forth, each
one one-hundredth of a Series B Preferred Share shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders of
the Trust. In the event the Trust shall at any time following August 31, 2001
(i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the number of
votes per share to which holders of Series B Preferred Shares were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.



     (B) Except as otherwise provided herein or required by law, the holders of
Series B Preferred Shares and the holders of Common Shares and any other shares
of beneficial interest of the Trust having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of the
Trust.



37









 






(C)      (i) Whenever, at any time or times, dividends payable on any Series B
Preferred Shares shall be in arrears in an amount equal to at least six
full quarterly dividends (whether or not declared and whether or not
consecutive), the holders of record of the outstanding Series B Preferred
Shares shall have the exclusive right, voting separately as a single
class, to elect two trustees of the Trust at a special meeting of
shareholders of the Trust or at the Trust’s next annual meeting of
shareholders, and at each subsequent annual meeting of shareholders, as
provided below. At elections for such trustees, the holders of Series B
Preferred Shares shall be entitled to cast one vote for each one
one-hundredth of a Series B Preferred Share held, subject to adjustment.




     (ii) Upon the vesting of such right of the holders of the Series B
Preferred Shares, the maximum authorized number of members of the Board
of Trustees shall automatically be increased by two and the two vacancies
so created shall be filled by vote of the holders of the outstanding
Series B Preferred Shares as hereinafter set forth. A special meeting of
the shareholders of the Trust then entitled to vote shall be called by
the Chairman of the Board or the Chief Executive Officer of the Trust, if
requested in writing by the holders of record of not less than 10% of the
Series B Preferred Shares then outstanding. At such special meeting, or,
if no such special meeting shall have been called, then at the next
annual meeting of shareholders of the Trust, the holders of the Series B
Preferred Shares shall elect, voting as above provided, two trustees of
the Trust to fill the aforesaid vacancies created by the automatic
increase in the number of members of the Board of Trustees. At any and
all such meetings for such election, the holders of a majority of the
outstanding Series B Preferred Shares shall be necessary to constitute a
quorum for such election, whether present in person or by proxy, and such
two trustees shall be elected by the vote of at least a plurality of
shares held by such shareholders present or represented at the meeting.
Any trustee elected by holders of Series B Preferred Shares pursuant to
this Section may be removed at any annual or special meeting, by vote of
the holders of a majority of the Series B Preferred Shares, with or
without cause. In case any vacancy shall occur among the trustees
elected by the holders of the Series B Preferred Shares pursuant to this
Section, such vacancy may be filled by the remaining trustee so elected,
or his successor then in office, and the trustee so elected to fill such
vacancy shall serve until the next meeting of shareholders for the
election of trustees. After the holders of the Series B Preferred Shares
shall have exercised their right to elect trustees in any default period
and during the continuance of such period, the number of trustees shall
not be further increased or decreased except by vote of the holders of
Series B Preferred Shares as herein provided or pursuant to the rights of
any equity securities ranking senior to or pari passu with the Series B
Preferred Shares.




     (iii) The right of the holders of the Series B Preferred Shares,
voting separately as a class, to elect two members of the Board of
Trustees as aforesaid shall continue until, and only until, such time as
all arrears in dividends (whether or not declared) on the Series B
Preferred Shares shall have been paid or declared and set apart for
payment, at which time such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the event of each and
every subsequent default of the character



38









 






above-mentioned. Upon any termination of the right of the holders
of the Series B Preferred Shares as a class to vote for trustees as
herein provided, the term of office of all trustees then in office
elected by the holders of Series B Preferred Shares pursuant to this
Section shall terminate immediately. Whenever the term of office of the
trustees elected by the holders of the Series B Preferred Shares pursuant
to this Section shall terminate and the special voting powers vested in
the holders of the Series B Preferred Shares pursuant to this Section
shall have expired, the maximum number of members of the Board of
Trustees shall be such number as may be provided for in the Bylaws of the
Trust irrespective of any increase made pursuant to the provisions of
this Section.



     (D) Except as otherwise provided herein or required by law, holders of
Series B Preferred Shares shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Shares as provided herein) for taking any trust action.



     (d) Certain Restrictions.



     (A) Whenever any quarterly dividends or other dividends or distributions
payable on the Series B Preferred Shares as provided in Section 2 are in
arrears, then, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series B Preferred Shares
outstanding shall have been paid in full, the Trust shall not:




     (i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series B Preferred Shares, other than dividends
paid or payable in such junior shares;




     (ii) declare or pay dividends on or make any other distributions on
any shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Shares, except dividends paid ratably on the Series B Preferred Shares
and all such parity shares on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all such shares are then entitled;




     (iii)
redeem or purchase or otherwise acquire for consideration
shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred Shares, provided
that the Trust may at any time redeem, purchase or otherwise acquire any
such parity shares in exchange for shares of the Trust ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series B Preferred Shares; or




     (iv) purchase or otherwise acquire for consideration any Series B
Preferred Shares, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Trustees) to all
holders of such shares upon such terms as the Board of Trustees, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall
determine in



39









 






good faith will result in fair and equitable treatment among the
respective series or classes.



     (B) The Trust shall not permit any subsidiary of the Trust to purchase or
otherwise acquire for consideration any shares of the Trust unless the Trust
could, under paragraph (A) of this Section, purchase or otherwise acquire such
shares at such time and in such manner.



     (e) Reacquired Shares. Any Series B Preferred Shares purchased or
otherwise acquired by the Trust in any manner whatsoever shall become
authorized but unissued shares of beneficial interest and may be reissued as
Common Shares or as part of a new series of preferred shares to be created by
resolution or resolutions of the Board of Trustees, subject to the conditions
and restrictions on issuance set forth herein.



     (f) Liquidation, Dissolution or Winding Up. (A) Upon any voluntary
liquidation, dissolution or winding up of the Trust, no distribution shall be
made to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Shares
unless, prior thereto, the holders of Series B Preferred Shares shall have
received $1.00 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the “Series B Liquidation Preference”). Following the payment of the full
amount of the Series B Liquidation Preference, no additional distributions
shall be made to the holders of Series B Preferred Shares unless, prior
thereto, the holders of Common Shares shall have received an amount per share
(the “Common Adjustment”) equal to the quotient obtained by dividing (i) the
Series B Liquidation Preference by (ii) 100 (as appropriately adjusted as set
forth in subparagraph C below to reflect such events as share splits, share
dividends and recapitalizations with respect to the Common Shares) (such number
in clause (ii), the “Adjustment Number”). Following the payment of the full
amount of the Series B Liquidation Preference and the Common Adjustment in
respect of all outstanding Series B Preferred Shares and Common Shares,
respectively, holders of Series B Preferred Shares and holders of Common Shares
shall receive their ratable and proportionate share of the remaining assets to
be distributed in the ratio, on a per share basis, of the Adjustment Number to
1 with respect to such Series B Preferred Shares and Common Shares, on a per
share basis, respectively.



     (B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series B Liquidation Preference and the
liquidation preferences of all other series of preferred shares, if any, which
rank on a parity with the Series B Preferred Shares, then such remaining assets
shall be distributed ratably to the holders of the Series B Preferred Shares
and such parity shares in proportion to their respective liquidation
preferences.



     (C) In the event the Trust shall at any time following August 31, 2001 (i)
declare any dividend on Common Shares payable in Common Shares, (ii) subdivide
the outstanding Common Shares or (iii) combine the outstanding Common Shares
into a smaller number of shares, then in each such case the Adjustment Number
in effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator



40









 







of which is the number of Common Shares that were outstanding immediately
prior to such event.



     (g) Consolidation, Merger, etc. In case the Trust shall enter into any
consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other shares or securities, cash
and/or any other property, then in any such case, the Series B Preferred Shares
shall at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of shares, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
Common Share is exchanged or changed. In the event the Trust shall at any time
(i) declare any dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
Series B Preferred Shares shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.



     (h) Redemption. The Series B Preferred Shares shall not be redeemable by
the Trust. The preceding sentence shall not limit the ability of the Trust to
purchase or otherwise deal in such shares to the extent permitted by law.



     (i) Ranking. The Series B Preferred Shares shall rank junior to all other
series of the Trust’s preferred shares (whether with or without par value) as
to the payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.



     (j) Amendment. Neither the Trust’s Declaration of Trust, nor any
articles supplementary relating to the Series B Preferred Shares shall be
amended in any manner which would materially alter or change the powers,
preferences, rights or other terms of the Series B Preferred Shares so as to
affect the holders of Series B Preferred Shares adversely without the
affirmative vote of the holders of a majority or more of the outstanding Series
B Preferred Shares, voting separately as a class.



     (k) Fractional Shares. Series B Preferred Shares may be issued in
fractions of a share that are integral multiples of one-one hundredth of a
share, which shall entitle the holder, in proportion to such holder’s
fractional shares, to exercise voting rights, receive dividends and participate
in distributions and to have the benefit of all other rights of holders of
Series B Preferred Shares.



41









 





Exhibit B




[Form of Right Certificate]




Certificate No. R-                                                                  Rights



NOT EXERCISABLE AFTER AUGUST 31, 2011 OR EARLIER IF THE RIGHTS
EXPIRE UNDER CERTAIN CIRCUMSTANCES OR ARE EXCHANGED OR REDEEMED BY
THE TRUST. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE TRUST, AT $0.001 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID. [THE RIGHTS EVIDENCED BY THIS RIGHT
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS
EVIDENCED HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]*



Right Certificate




ARCHSTONE-SMITH TRUST




     This certifies that                                          , or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of August 31, 2001 (the “Rights Agreement”),
between Archstone-Smith Trust, a Maryland real estate investment trust (the
“Trust”), and Mellon Investor Services LLC, a New Jersey limited liability
company (the “Rights Agent”) to purchase from the Trust at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior
to 5:00 p.m. (Eastern time) on August 31, 2011 or notice of redemption or
exchange at the office of the Rights Agent (or its successors as Rights Agent)
designated for such purpose, one one-hundredth of a fully paid, non-assessable
Series B Junior Participating Preferred Share (a “Preferred Share”) of the
Trust, at a purchase price of $75.00 per one one-hundredth of a Preferred Share
(the “Purchase Price”), upon presentation and









	*	 	The portion of the legend in brackets shall be inserted only if applicable and
shall replace the preceding sentence.





42









 




surrender of this Right Certificate with the appropriate Form of Election
to Purchase and related Certificate duly executed. The number of Rights
evidenced by this Right Certificate (and the number of Preferred Shares which
may be purchased upon exercise thereof) set forth above, and the Purchase Price
per Preferred Share set forth above, are the number and Purchase Price as of
the Record Date (as defined in the Rights Agreement), based on the Preferred
Shares as constituted at such date. Capitalized terms not defined in this
Right Certificate that are defined in the Rights Agreement shall have the
meanings ascribed to them in the Rights Agreement.




     Upon the occurrence of a Triggering Event, if the Rights evidenced by this
Right Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person, (ii) under certain
circumstances specified in the Rights Agreement, a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and no holder hereof
shall have any right with respect to such Rights from and after the occurrence
of any such Triggering Event.



     As provided in the Rights Agreement, the Purchase Price and the number and
kind of Preferred Shares or other securities, which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.



     This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Trust and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under certain circumstances specified in such Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.



     This Right Certificate, with or without other Right Certificates, upon
surrender at the principal corporate trust office of the Rights Agent, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like aggregate number
of Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.



     Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Trust at its option at a redemption
price of $0.001 per Right at any time prior to the earlier of (i) such time as
any Person becomes an Acquiring Person or (ii) the close of business on the
Final Expiration Date.



43









 





     No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Trust, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.



     No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Preferred Shares
or of any other securities of the Trust which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Trust or any right to vote for the election of
trustees or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any trust action, or, to receive notice of
meetings or other actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right Certificate shall
have been exercised as provided in the Rights Agreement.



     This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.



44









 





     WITNESS the facsimile signature of the proper officers of the Trust and its seal.


	 	 	 	 	 
	Dated as of                     , 20__




	 	ARCHSTONE-SMITH TRUST

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Attest: (SEAL)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Countersigned:







MELLON INVESTOR SERVICES LLC

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 





45









 





[Form of Reverse Side of Right Certificate]




FORM OF ASSIGNMENT





(To be executed by the registered holder if such holder desires to
transfer the Right Certificate.)



      



			
	FOR VALUE RECEIVED

assigns and transfers unto
	 	hereby sells,







(Please print name and address of transferee)



this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint                    
Attorney, to transfer the within Right Certificate on the books of the
within-named Trust, with full power of substitution.




	 	 	 	 	 
	 	 	 
	Date:                                       , 20 __ 	  	 	 
	 	 	          Signature 	 
	 	 	 	 
	 



Signature Guaranteed:



Certificate





     The undersigned hereby certifies by checking the appropriate boxes that:



     (1) this
Right Certificate o is o is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);



     (2) after due inquiry and to the best knowledge of the undersigned, it o
did o did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person.


	 	 	 	 	 
	 	 	 
	Date:                                        , 20 __ 	  	 	 
	 	 	          Signature 	 
	 	 	 	 
	 




NOTICE





     The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.



46









 





FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to

exercise Rights represented by the

Right Certificate.)



To: ARCHSTONE-SMITH TRUST



     The undersigned hereby irrevocably elects to exercise                     Rights
evidenced by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of the Rights (or such other securities of the Trust or of
any other person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name of:



Please insert social security

or other identifying number:                                                                                                                                                         



                                                                                                                                                                                              


(Please print name and address)




     If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:



Please insert social security

or other identifying number:                                                                                                                                                         



                                                                                                                                                                                              


(Please print name and address)




	 	 	 	 	 
	 	 	 
	Date:                                       , 20__ 	  	 	 
	 	 	Signature 	 
	 	 	 	 
	 



Signature Guaranteed:




47









 





Certificate




     The undersigned hereby certifies by checking the appropriate boxes that:



     (1) the Rights evidenced by this Right Certificate o are o are not being
exercised by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);



     (2) after due inquiry and to the best knowledge of the undersigned, it o
did o did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person.


	 	 	 	 	 
	 	 	 
	Dated:                                       , 20 __ 	  	 	 
	 	 	          Signature 	 
	 	 	 	 
	 




NOTICE





     The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.




48