Unassociated Document


     

    
      INVESTORS’
RIGHTS AGREEMENT

      (Series
C Preferred Shares)

       

      THIS AMENDED AND RESTATED INVESTORS’
RIGHTS AGREEMENT, dated as of November 1, 2009 (this “Agreement”), by and
among Winthrop Realty Trust, an unincorporated association in the form of a
business trust organized in Ohio (the “Company”), Michael
Ashner, Peter Braverman, and each of the Investors listed on Schedule I attached
hereto (referred to hereinafter collectively as the “Investors” and
individually as an “Investor”).

       

      RECITALS:

       

      A.           The
Investors are acquiring contemporaneously with the execution and delivery of
this Agreement, shares of Series C Cumulative Convertible Redeemable Preferred
Shares of the Company (the “Series C
Stock”).

       

      B.           It
is a condition precedent to the purchase of such Series C Stock that the
Company, Michael Ashner and Peter Braverman enter into this Agreement with the
Investors to provide for certain additional agreements and obligations of the
parties.

       

      AGREEMENT:

       

      NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, intending to be
legally bound, the parties hereto agree as follows:

       

      ARTICLE
I

      DEFINITIONS

       

      SECTION
1.1      Definitions.  The
following terms shall have the meanings ascribed to them below:

       

      “Additional
Securities” shall have the meaning set forth in Section
3.2(a).

      


      “Affiliate” of a
Person shall have the meaning set forth in Rule 12b-2 under the Exchange
Act.  Notwithstanding anything to the contrary set forth in this
Agreement, no limited partner or similar participant of an Investor shall be
deemed an Affiliate of such Investor.

       

      “Board” or “Board of Trustees”
shall mean the Board of Trustees of the Company.

      


      “Beneficial Holder”
shall have the meaning set forth in Section 2.3.

      


      “Certificate of
Designations” shall mean the Company’s Certificate of Designations
governing the Series C Stock, as the same may be amended from time to
time.

       

      “Co-Investment Right”
shall have the meaning set forth in Section 3.3.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      “Co-Investment
Percentage” shall mean 27.47% less the percentage of the investment for
which the Co-Investment Right relates that holders of Series B-1 Stock have
elected to acquire pursuant to the terms of that certain Amended and Restated
Investor Rights Agreement, dated as of June 20, 2005, by and among the Company,
Michael Ashner, Peter Braverman, and each of the Investors listed on Schedule I
attached thereto.

       

      “Commission” shall
mean the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act.

       

      “Common Stock” shall
mean the common shares of beneficial interest, $1.00 par value per share, of the
Company.

       

      “Company” shall have
the meaning set forth in the preamble of this Agreement.

       

      “Declining Preemptive
Purchaser” shall have the meaning set forth in Section
3.2(c).

       

      “Derivative
Securities” shall mean any subscriptions, options, conversion rights,
warrants or other agreements, securities or commitments of any kind obligating
the Company or any of its Subsidiaries to issue, grant, deliver or sell, or
cause to be issued, granted, delivered or sold (i) any Equity Securities of the
Company, or (ii) any securities convertible into, exercisable for or
exchangeable for any Equity Securities of the Company.

      


      “Disposition” shall
have the meaning set forth in Section 2.3.

      


      “Equity Securities”
shall mean Common Stock, Series B-1 Stock, Series C Stock and any other equity
securities of the Company.

      


      “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, or any successor statute,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.

       

      “Excluded Shares”
shall mean (i) shares of Common Stock issuable upon conversion of, or
distributions with respect to, any shares of Series C Stock or any share of
Series B-1 Stock; (ii) shares of Common Stock issuable upon the exercise of
stock options or other awards made or denominated in shares of Common Stock
under any of the Company’s stock plans including any stock option, stock
purchase, restricted stock or similar plan hereafter adopted by the Board of
Trustees and, if required by applicable Law or stock exchange requirement,
approved by the stockholders of the Company; (iii) shares of Common Stock issued
pursuant to an acquisition of a direct or indirect interest in real property or
assets related thereto, a business (including, without limitation, by way of an
acquisition of capital stock) or the assets of a business (which assets do not
consist primarily of cash or cash equivalents) approved by the Board of
Trustees; and (iv) Shares of Common Stock issuable upon exercise or conversion
of Derivative Securities issued and outstanding on the date hereof.

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

      

       

      “Governmental Body”
shall mean any government or governmental or quasi-governmental authority
including, without limitation, any federal, state, territorial, county,
municipal or other governmental or quasi-governmental agency, board, branch,
bureau, commission, court, arbitral body (public or private), department or
other instrumentality or political unit or subdivision, whether located in the
United States or abroad, the National Association of Securities Dealers, Inc.,
the New York Stock Exchange, the Nasdaq National Market, the Nasdaq SmallCap
Market or the American Stock Exchange.

       

      "Holder" shall mean
(i) any Investor holding shares of Series C Stock (or shares of Common Stock
issued on conversion thereof) and (ii) any Person to whom an Investor has
transferred shares of Series C Stock during the term of this Agreement pursuant
to Section 2.3(a), Section 2.3(b)(ii) or Section 2.3(c) who is holding such
Series C Stock or Common Stock issued on conversion thereof.

       

      “Institutional
Investor” shall mean any of the following Persons: (i) a bank, trust
company, savings and loan or other financial institution, pension plan,
broker-dealer or similar entity, (ii) an insurance company, (iii) a pension
fund, (iv) a hedge fund, (v) a venture capital fund, (vi) a mutual fund, (vii) a
leveraged buyout fund, (viii) an investment bank, (ix) a savings association,
(x) an investment fund whose principal investors are Institutional Investors,
(xi) any Investor, or (xii) any Person that is an Affiliate of any Person named
in clauses (i) through (xi).

      


      “Investors” shall have
the meaning set forth in the preamble of this Agreement.

       

      “Law” shall mean any
treaty, statute, ordinance, code, rule, regulation, Order or other legal
requirement enacted, adopted, promulgated, applied or followed by any
Governmental Body.

       

      “NYSE” shall mean the
New York Stock Exchange.

       

      “Order” shall mean any
order, injunction, judgment, decree, ruling, writ, assessment or arbitration
award.

       

      “Overallotment Right”
shall have the meaning set forth in Section 3.3(a).

       

      “Other Transferee”
shall have the meaning set forth in Section 2.3(b).

       

      “Parity Shares” shall
have the meaning ascribed thereto in the Certificate of
Designations.

       

      “Participation” shall
have the meaning set forth in Section 3.3.

       

      “Permitted
Disposition” shall have the meaning set forth in Section
2.3.

       

      “Person” shall mean
any natural person, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.

       

      “Preemptive Acceptance
Notice” shall have the meaning set forth in Section 3.2(b).

       

      “Principal Holder”
shall mean each of Michael Ashner and Peter Braverman.

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

      “Preemptive Acceptance
Period” shall have the meaning set forth in Section 3.2(b).

       

      “Preemptive Notice”
shall have the meaning set forth in Section 3.2(b).

       

      “Preemptive Right”
shall have the meaning set forth in Section 3.2(a).

       

      “Redemption Date”
shall have the meaning set forth in the Certificate of
Designations.

       

      “Registration Rights
Agreement” shall mean that certain Amended and Restated Registration
Rights Agreement, dated as of the date hereof, by and among the Company and the
Investors.

       

      “Securities Act” shall
mean the Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect at the
time.

       

      “Series B-1 Stock”
shall mean the Company’s Series B-1 Cumulative Convertible Redeemable Preferred
Shares of Beneficial Interest.

       

      “Series C Designees”
shall mean the Trustees, if any, elected by the Holders pursuant to the
Certificate of Designations.

       

      “Series C Stock” shall
have the meaning ascribed thereto in the recitals.

       

      “Trustee” shall mean a
Trustee of the Company.

      


      “Voting Securities”
shall mean the shares of Common Stock, preferred shares and any other securities
of the Company entitled to vote generally for the election of Trustees, and any
securities which are convertible into, or exercisable or exchangeable for,
Voting Securities.

      


      SECTION
1.2      General Interpretive
Principles.  Whenever used in this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, any noun
or pronoun shall be deemed to include the plural as well as the singular and to
cover all genders. The name assigned this Agreement and the section captions
used herein are for convenience of reference only and shall not be construed to
affect the meaning, construction or effect hereof.  Unless otherwise
specified, the terms “hereof,” “herein” and similar terms refer  to
this Agreement as a whole (including the exhibits hereto), and references herein
to Sections refer to Sections of this Agreement.

       

      ARTICLE
II

      ADDITIONAL
AGREEMENTS

       

      SECTION
2.1      [Intentionally omitted.]

       

      
        
           

        

        
          4

          
            

          

        

        
           

        

      

       

      SECTION
2.2      No
Shorting.  No Holder, or any of its Affiliates under its
control, will engage in, or will cause any person or entity, directly or
indirectly, to engage in “short sales” of the Company's Common Stock unless: (i)
such Holder has converted all of the Series C Stock held by such Holder into
Common Stock; or (ii) the Company fails to pay a dividend on the Series C Stock
after it first declares and pays a regular dividend on the Common Stock; or
(iii) the fair market value of the Company’s issued and outstanding Common Stock
(determined by multiplying the number of shares of Common Stock issued and
outstanding by the average closing price of the Common Stock on the NYSE over
the five most recent trading days) shall at any time be less than
$71,200,000.

       

      SECTION
2.3      Dispositions.  During
the term of this Agreement, no Investor shall directly or indirectly (including,
without limitation, through the disposition or transfer of any equity interest
in another Person), sell, assign, transfer, pledge, hypothecate, grant any
option with respect to or otherwise dispose of any interest in (or enter into an
agreement or understanding with respect to the foregoing) any Series C Stock (a
“Disposition”), except as set forth below in this Section 2.3 (each such
exception being hereinafter referred to as a “Permitted
Disposition”):

       

      (a)           Pro
rata Dispositions of Series C Stock may be made to any direct or indirect
partner, investor or participant (a “Beneficial Holder”) of any Investor
pursuant to the terms of the limited partnership agreement, operating agreement
or similar agreement of such Investor, provided, that no such Disposition shall
be made unless the Beneficial Holder agrees in writing to be bound by the terms
of this Agreement.

       

      (b)           Dispositions
of Series C Stock may be made to any Person pursuant to (i) a public offering
effected in accordance with a registration statement declared effective by the
Securities and Exchange Commission, (ii) in privately-negotiated transactions to
(A) an Institutional Investor or (B) if such Disposition is approved by the
Board (“Other Transferee”) any other Person or (iii) pursuant to Rule 144
promulgated under the Securities Act; provided, that no Disposition shall be
made pursuant to clause (ii) of this Section 2.3(b) unless such Institutional
Investor or Other Transferee agrees in writing to become a Holder under the
terms of this Agreement.

       

      (c)           Dispositions
of Series C Stock may be made to any Affiliate of an Investor, provided that
such Affiliate agrees in writing to be bound by the terms of this
Agreement.

       

      ARTICLE
III

      ADDITIONAL
COVENANTS

       

      SECTION
3.1      Affiliate
Transactions.  At such time, if at all, as there is a Series C
Designee, except for (i) transactions between the Company and any wholly-owned
subsidiary and (ii) pursuant to compensatory or contractual arrangements
existing on the date hereof, neither the Company nor any subsidiary shall enter
into any transaction with, any Affiliate without the consent of a majority of
those Trustees who are considered independent under Section 303 of the NYSE
listing standards (including at least one Series C Designee).  So long
as shares of Series C Stock are outstanding, all such transactions shall be on
fair and reasonable terms no less favorable to the Company than would be
obtainable in a comparable arm’s length transaction with a person not an
Affiliate.

       

      
        
           

        

        
          5

          
            

          

        

        
           

        

      

       

      SECTION
3.2      Preemptive
Rights.

       

      (a)           In
addition to any rights provided to Holders in the Certificates of Designation,
until the earlier of (i) the termination of this Agreement pursuant to Article
IV hereunder or (ii) January 2, 2010, if the Company proposes to sell any
subordinated debt, Equity Securities or Derivative Securities (other than
Excluded Shares) (all such securities, other than Excluded Shares, are referred
to collectively herein as “Additional
Securities”), the Company shall first give to each Investor (and, only
with respect to preferred shares, to any Holders) holding shares of Series C
Stock the opportunity (such opportunity being herein referred to as the “Preemptive Right”) to
purchase (on the same terms as such Additional Securities are proposed to be
sold) the same percentage of such Additional Securities proposed to be sold by
the Company as equals the percentage equal to the quotient of (i)  the
number of shares of Common Stock into which the shares held by such Investor of
Series C Stock could be converted, divided by (ii) the sum
of  (A)  all the outstanding shares of Common Stock of the
Company and (B) the number of shares of Common Stock into which all the shares
of Series C Stock held by all Investors (and Holders, if applicable) could be
converted and (C) the number of shares of Common Stock into which all the shares
of Series B-1 Stock could be converted; provided, however, that no
Preemptive Rights shall apply (i) to any issuance of Additional Securities
pursuant to a registration statement filed under the Securities Act; or (ii) any
issuance of rights to all holders of Common Stock (or of all Voting Securities)
of the Company.

       

      (b)           At
least 20 days prior to the issuance by the Company of any Additional Securities,
the Company shall give written notice thereof (the “Preemptive Notice”)
to each Investor and Holders (if applicable).  The Preemptive Notice
shall specify (i) the name and address of the bona fide investor (if known) to
whom the Company proposes to issue or sell Additional Securities, (ii) the total
amount of capital to be raised by the Company pursuant to the issuance or sale
of Additional Securities, (iii) the number of such Additional Securities
proposed to be issued or sold, (iv) the price and other terms of the Additional
Securities and of their proposed issuance or sale, (v) the number of such
Additional Securities which such Investor is entitled to purchase (determined as
provided in Section 3.2(a)), and (vi) the period during which such Investor may
elect to purchase such Additional Securities, which period shall extend for at
least 20 days following the receipt by such Investor or Holder, as applicable,
of the Preemptive Notice (the “Preemptive Acceptance
Period”).  Each Investor who desires to purchase Additional
Securities shall notify the Company within the Preemptive Acceptance Period of
the number of Additional Securities he wishes to purchase, as well as the
number, if any, of extra Additional Securities (“Extra Additional Securities”)
he would be willing to purchase in the event that all of the Additional
Securities subject to the Preemptive Right are not subscribed for by the other
Investors and Holders (the “Preemptive Acceptance
Notice”).

       

      (c)           In
the event an Investor or Holder, as applicable, declines to subscribe for all or
any part of its pro rata portion of any Additional Securities which are subject
to the Preemptive Right (the “Declining Preemptive
Purchaser”) during the Preemptive Acceptance Period, then the other
Investors or Holders, as applicable, shall have the right to subscribe for all
(or any declined part) of such Declining Preemptive Purchaser’s pro rata portion
of such Additional Securities (to be divided among the other Investors desiring
to exercise such right on a ratable basis) (the “Overallotment
Right”).  Each Investor’s Overallotment Right, if any, shall be
deemed to be exercised on the date the Preemptive Acceptance Notice is
given.

       

      
        
           

        

        
          6

          
            

          

        

        
           

        

      

       

      (d)           After
the conclusion of the Preemptive Acceptance Period, Additional Securities, less
any Additional Securities for which Preemptive Rights or Overallotment Rights
are exercised, may be sold by the Company, within a period of 4 months after the
expiration of the Preemptive Acceptance Period, to any other Person or Persons
at not less than the price and upon other terms and conditions not less
favorable to the Company than those set forth in the Preemptive
Notice.

       

      SECTION
3.3      Co-Investment
Rights.  If the Company offers to any third party the right to
participate in an investment made by the Company, then the Company shall offer
to the Investors the opportunity (a “Co-Investment
Right”), on a pro rata basis, to contribute to such investment on the
same terms offered by contributing up to the Co-Investment Percentage of the
aggregate dollar amount of such investment (the “Participation”).  The
Company shall send written notice to all Investors as soon as practicable of any
Co-Investment Right (which notice shall describe the terms of the investment and
the identity, nature and business of the investee), and all Investors shall
within five business days notify the Company of any election to exercise their
Co-Investment Right.  If any Investor elects not to exercise its
Co-Investment Right with respect to any particular investment, the amount
subject to such holder’s Co-Investment Right shall be offered to the remaining
Investors on a pro rata basis.  Notwithstanding the foregoing, (i) the
Company shall not be obligated to offer Co-Investment Rights on any investment
made by the Company (A) with a third party who initiated the investment
opportunity or brought the investment opportunity to the attention of the
Company or (B) with a third party who was a bidder for the investment
opportunity, (ii) the Company shall not be obligated to offer Co-Investment
Rights in any joint venture, investment vehicle or special purpose entity formed
by the Company provided that Co-Investment Rights are offered with respect to
investments made by such joint venture, investment vehicle or entity, and (iii)
the Company shall offer Co-Investment Rights to the Investors in the event that
the Company makes a tender offer for limited partnership interests of an
unaffiliated entity, provided, however, that any such Co-Investment Right shall
be made on terms which provide for the Company to receive a 20% promotional
interest after Investors who exercise Co-Investment Rights have received their
initial investment plus a 7% per annum return.  If an Investor elects
not to exercise Co-Investment Rights with respect to any investment, and the
other Investors elect not to participate in the investment in which such
investor elects not to participate, the Company may offer the right to
participate in such investment to such parties as the Company shall determine in
its sole discretion.  In the event that an Investor’s Co-Investment
Rights terminate as a result of the disposition of 50% of such Investor’s Series
C Stock, the remaining Investors shall retain in the aggregate the same
Co-Investment Rights that all Investors held on the date hereof.

       

      
        
           

        

        
          7

          
            

          

        

        
           

        

      

       

      SECTION
3.4      Drag-Along
Rights.

       

      (a)           Scope of
Rights.   As long as the Principal Holders and their
Affiliates in the aggregate own at least 10% of the outstanding Common Stock of
the Company, if both Principal Holders propose to make a Disposition of all of
the Voting Securities held by the Principal Holders to an unaffiliated third
party or parties (other than sales of Common Stock on the principal market on
which the Common Stock of the Company is listed or traded or a pledge of Common
Stock in connection with a financing) in a transaction pursuant to which the
third party or parties would obtain all or substantially all of the outstanding
Common Stock, such Principal Holder shall have the right to require each Holder
whose Series C Stock is not redeemed pursuant to Section 5(b) of the Certificate
of Designation to sell all of its Common Stock and to convert its Series C Stock
then held by it and sell the Common Stock issuable on converting to such third
party on the same terms as the Principal Holders (subject to paragraph (b)
below) and each Holder agrees to vote all of the Voting Securities owned by it
in favor of such transaction (a transaction described in this paragraph, a
“Drag-Along
Sale,” and rights described in such clauses, the “Drag-Along
Rights”).

       

      (b)             Procedures.  In
order to exercise a Drag-Along Right, the Principal Holder shall notify each
Holder, no later than thirty (30) days prior to the closing of such Drag-Along
Sale, such notice to set forth the timing, proposed amount and form of
consideration, terms and conditions of such proposed sale.  Each
Holder will take all actions reasonably requested by the Principal Holder or the
Company as are required to be taken by the holders of all outstanding shares, in
connection with the consummation of such sale, and shall cause all of its Common
Stock to be sold to the designated purchaser at the same time on the same terms
and conditions and for the same type and amount of consideration as the Common
Stock being sold by the Principal Holders in such proposed sale (subject to the
provisions of this paragraph).  In furtherance of the foregoing, in
connection with a Drag-Along Sale each Investor will (i) waive any appraisal or
dissenters rights or similar rights under the law of Ohio, and (ii) execute all
documents containing such terms and conditions as those executed by all other
stockholders as reasonably directed by the Principal Holder (subject to the
provisions of this Section 3.4(b)).  Notwithstanding any other
provisions hereof, with respect to the terms and conditions of any Drag-Along
Sale, such terms and conditions will provide that the maximum liability for any
Holder in respect of all representations, warranties and indemnities given to
the purchaser in any Drag-Along Sale shall not exceed the value of the net
proceeds received by such Holder with respect to the Drag-Along Shares in such
Drag-Along Sale.

       

      (c)           Closing.  The
closing of the Drag-Along Sale shall be held at such time and place as the
Principal Holder exercising such rights shall specify and at least five (5) days
notice of the time and place of the Closing shall be given to each
Holder.  At such closing, each Investor shall deliver certificates
representing the Common Stock to be transferred, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, and the Common Stock
to be transferred shall be free and clear of any liens, claims or encumbrances
(other than restrictions imposed pursuant to applicable federal and state
securities laws or by the Principal Holder thereof) and each Investor shall so
represent and warrant.

       

      
        
           

        

        
          8

          
            

          

        

        
           

        

      

       

      SECTION
3.5      Tag-Along
Rights.

       

      (a)           Applicable Dispositions;
Tag-Along Rights.  The term “Co-Sale Transaction”
means a Disposition by either Principal Holder of the Common Stock beneficially
owned under Rule 13d-3 under the Exchange Act by such Principal Holder; provided that the
following transactions shall not constitute a
Co-Sale Transaction: (i) a Disposition in connection with a Drag-Along Sale in
which Drag-Along Rights are exercised; (ii) a pledge of Common Stock to a
financial institution or other lender in connection with a financing; (iii) a
sale of Common Stock on the principal market on which Common Stock is listed or
traded, and (iv) a Disposition to an Affiliate of the Principal Holder or to its
members so long as such Affiliate (or members) becomes a party to this Agreement
and agrees to be bound by the terms and conditions hereof to the same extent and
in the same manner as the Principal Holder.  In the event the
Principal Holder proposes to make a Disposition of Common Stock in a Co-Sale
Transaction it shall provide notice thereof to each Holder at least thirty (30)
days prior to the date of such Disposition (the “Tag-Along
Notice”).

       

      (b)           Election to
Participate.  The Tag-Along Notice shall describe the terms and
conditions of such Disposition, including without limitation the form and amount
of all consideration payable to the Principal Holder and any other party in
connection therewith, the proposed closing date, any conditions to closing and
all other material terms and conditions.  Upon receipt of the
Tag-Along Notice, each Holder may elect to participate by converting Series C
Stock and  transferring the Common Stock issued upon such conversion,
on a pro rata (based upon its
percentage ownership of Common Stock, on an as-converted basis, relative to the
combined ownership of the Principal Holder and all Holders with rights under
this Section 3.5) basis in such Disposition by giving written notice of its
election to participate to the Principal Holder not later than twenty (20) days
following such receipt.  Such transfer shall be made on the same terms
and conditions of the Disposition described in the Tag-Along
Notice.  The number of shares of Common Stock to be transferred by the
Principal Holder in connection with such transfer shall be reduced by the number
of shares of Common Stock transferred by each Holder pursuant to this Section
3.5, unless the proposed Transferee is willing to purchase all of the Common
Stock owned by each Holder, and the Tag-Along Notice so indicates.

       

      (c)           Closings.  The
closing of the Co-Sale Transaction shall be held at such time and place as the
Principal Holder shall specify in the Tag-Along Notice.  At such
closing, each Holder shall deliver certificates representing the Common Stock to
be transferred by each Holder in the Co-Sale Transaction, duly endorsed for
transfer and accompanied by all requisite stock transfer taxes, if any,
and  the Common Stock to be transferred shall be free and clear of any
liens, claims or encumbrances (other than restrictions imposed pursuant to
applicable federal and state securities), and each Holder shall so represent and
warrant.  Each Holder will bear its pro rata share of the costs and
expenses incurred in connection with the Co-Sale Transaction in which its
participates to the extent such costs are incurred for the benefit of all
stockholders Transferring securities in such transaction.  Costs
incurred by each Holder on its own behalf will not be reimbursed.

       

      
        
           

        

        
          9

          
            

          

        

        
           

        

      

       

      ARTICLE
IV

      TERMINATION

       

      SECTION
4.1      Termination.  Without
limiting any liability of the Company or the Holders for any breach of its
obligations hereunder, this Agreement will be terminated: (i) if the Company,
the Investors and the Holders holding a majority of the Series C Stock or the
Common Stock issued upon conversion thereof mutually agree in writing; (ii) on
any Redemption Date under Section 5(a) of the Certificate of Designations if no
Series C Stock remains outstanding; and (iii) with respect to any Investor or
Holder when such Investor makes a Disposition of all of the Series C Stock and
all of the Common Stock issued on conversion thereof held by such
Investor.  Notwithstanding the foregoing, the following rights and
obligations will terminate prior to termination of the Agreement as follows, if
(i) the rights and obligations provided in Section 3.2 and 3.3 shall terminate
(x) for all Holders upon the redemption of all Series C Stock pursuant to
Section 5(a) of the Certificate of Designations, (y) in the case of any specific
Investor shall terminate with respect to such Investor (but not remaining
Investors) upon the Disposition by such Investor of 50% or more of the Common
Stock issuable upon conversion of the Series C Stock purchased by such Investor,
(ii) the provisions of Section 3.4 and 3.5 shall terminate upon the earlier of
(x) effectiveness of a registration statement with respect to the resale of the
Common Stock issuable upon the conversion the Series C Stock or (y) six months
after the date hereof, and (iii) no person who acquires Series C Stock in
connection with a Permitted Disposition under Section 2.3(b)(i) or 2.3(b)(iii)
or Common Stock issued upon conversion thereof shall succeed to any rights or
obligations under Article III.

       

      ARTICLE
V

      MISCELLANEOUS

       

      SECTION
5.1      Amendment and
Modification.  This Agreement may be amended, modified and
supplemented, and any of the provisions contained herein may be waived, only by
a written instrument signed by the Company and by the Investors and the Holders
owning at least a majority of the outstanding Series C Stock and Common Stock
issued upon conversion thereof owned by all Holders or Investors as the case may
be.  No course of dealing between or among any Persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any Person
under or by reason of this Agreement.

       

      SECTION
5.2      Assignment; No Third Party
Beneficiaries. Neither this Agreement, nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of Law or otherwise) without the prior written consent of the other
parties, provided, however, that (i) the obligations contained in Sections 2.2
and 2.3 shall be binding upon Beneficial Holders, Institutional Investors, Other
Transferees and Affiliates of Investors to whom a Permitted Disposition is made
and the rights provided in Section 3.5 shall be assignable in the event of such
a Permitted Disposition, and (ii) any Affiliate of an Investor may share in the
Co-Investment Rights held by such Investor under Section
3.3.  Notwithstanding anything to the contrary in this Agreement and
except as provided in clause (ii) of the preceding sentence, the rights and
obligations provided in Sections 3.2 and 3.3 are personal to each Investor and
shall inure solely to the benefit of, and be binding upon, the Investors and may
not be assigned except to another Investor and except that the rights provided
in Section 3.2 with respect to offerings of preferred shares shall inure to the
benefit of any Beneficial Holder, Institutional Investor, Other Transferee or
Affiliate of an Investor, in any Permitted Disposition to such
party.

       

      
        
           

        

        
          10

          
            

          

        

        
           

        

      

       

      SECTION
5.3      Binding Effect; Entire
Agreement.  Except as otherwise provided herein, this Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns and executors,
administrators and heirs.  This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.

       

      SECTION
5.4      Severability.  If
one or more provisions of this Agreement are held to be unenforceable under
applicable Law, such provision(s) shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms so long as the
economic or legal substance of the transactions contemplated by this Agreement
are not affected in any manner materially adverse to any party.

       

      SECTION
5.5      Notices and
Addresses.  Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service, if personally served or sent by
facsimile or electronic mail; on and upon receipt, if delivered to a courier or
mailed by express mail, if sent by courier delivery service or express mail for
next day delivery, or if mailed to the party to whom notice is to be given, by
first class mail, registered, return receipt requested, postage prepaid and
addressed as follows:

       

      If to the
Company:

       

      Winthrop
Realty Trust

      7
Bulfinch Place, Suite 500,

      P.O. Box
9507,

      Boston,
Massachusetts  02114

      Facsimile:   (617)
570-4746

      Telephone:  (617)
570-4600

      E-mail:  ctiffany@firstwinthrop.com

      


      If to
Michael Ashner or Peter Braverman:

      


      Two
Jericho Plaza

      Wing
A

      Jericho,
New York  11753

      Facsimile:  (516)
433-2777

      Telephone:  (516)
822-0022

      E-mail:  asst@wfajericho.com

       

      
        
           

        

        
          11

          
            

          

        

        
           

        

      

       

      with a
copy to:

      


      Post
Heymann & Koffler LLP

      Two
Jericho Plaza

      Wing A,
Suite 111

      Jericho,
New York  11753

      Facsimile:  (516)
495-7654

      Telephone:  (516)
681-3636

      E-mail:  djh@phklaw.com

      


      If to any
Holder, to the address set forth on such Holder’s signature page attached
hereto.

       

      SECTION
5.6      Governing
Law.  This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be governed by the
internal Laws of the State of New York, without regard to the conflicts of Law
principles thereof which would specify the application of the Law of another
jurisdiction.

       

      SECTION
5.7      Headings.  The
headings in this Agreement are for convenience of reference only and shall not
constitute a part of this Agreement, nor shall they affect their meaning,
construction or effect.

       

      SECTION
5.8      Counterparts.  This
Agreement may be executed via facsimile and in any number of counterparts, each
of which shall be deemed to be an original instrument and all of which together
shall constitute one and the same instrument.

       

      SECTION
5.9      Further
Assurances.  Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.

       

      SECTION
5.10      Remedies.  In
the event of a breach or a threatened breach by any party to this Agreement of
its obligations under this Agreement, any party injured or to be injured by such
breach will be entitled to specific performance of its rights under this
Agreement or to injunctive relief, in addition to being entitled to exercise all
rights provided in this Agreement and granted by Law, it being agreed by the
parties that the remedy at Law, inducing monetary damages, for breach of any
such provision will be inadequate compensation for any loss and that any defense
or objection in any action for specific performance or injunctive relief that a
remedy at Law would be adequate is waived.

       

      SECTION
5.11      Jurisdiction.  Each
of the Investors and the Company (a) hereby irrevocably and unconditionally
submits to the exclusive jurisdiction of any state or federal court sitting in
New York County, New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or the subject matter hereof brought by
the Company, or any Investor and (b) hereby waives and agrees not to assert, by
way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such
court.  If a judgment is obtained, this Section shall not preclude
enforcement thereof in any forum.

       

      
        
           

        

        
          12

          
            

          

        

        
           

        

      

       

      SECTION
5.12      Waiver of Jury
Trial.  Each of the parties hereto hereby waives all right to trial by
jury in any action or proceeding under, arising out of or related to this
forbearance agreement.

       

      [Signature
Page Follows.]

       

      
        
           

        

        
          13

          
            

          

        

        
           

        

      

       

      IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.

      


      


      WINTHROP
REALTY TRUST

      


      


      By:_________________________

      Carolyn Tiffany

      President

      


      


      _________________________________

      Peter
Braverman

      


      


      


      __________________________________

      Michael
Ashner

       

      
        
           

        

        
          14

          
            

          

        

        
           

        

      

       

      Schedule
I

      


      Fairholme
Ventures II LLC

      Kimco
Realty Corporation

      Voshel
Investments, LLC

       

      
        
           

        

        
          15