Unassociated Document


     

    
      SERIES C
CUMULATIVE CONVERTIBLE REDEEMABLE

       

      PREFERRED
SHARES OF BENEFICIAL INTEREST

       

      CERTIFICATE
OF DESIGNATIONS


       

       

      WINTHROP
REALTY TRUST

       

       

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      Designating
a Series of Preferred Shares of Beneficial Interest as Series C Cumulative
Convertible Preferred Shares of Beneficial Interest and Fixing Distribution and
Other Preferences and Rights of Such Series

       

       

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      Dated as
of November 1, 2009

       

       

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      WINTHROP
REALTY TRUST

       

      The
undersigned, Michael L. Ashner, Chairman and Chief Executive Officer of Winthrop
Realty Trust, an Ohio real estate investment trust (the “Trust”), hereby
certifies on behalf of the Trust that:

       

      The Board
of Trustees adopted the following resolution creating the Series C Cumulative
Convertible Redeemable Preferred Shares of Beneficial Interest, par value $1.00
per share, of the Trust:

       

      RESOLVED,
that pursuant to the authority vested in the Board of Trustees in accordance
with Section 4.3 of the Second Amended and Restated Declaration of Trust, a
series of preferred shares of the Trust be and hereby is created, and that the
designation and amount thereof and the preferences and relative, optional and
other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:

       

      
        	
                Section
      1.

              	
                Number of Shares and
      Designation.  This class of preferred shares of
      beneficial interest shall be designated as Series C Cumulative Convertible
      Redeemable Preferred Shares of Beneficial Interest, par value $1.00 per
      share (the “Series C Preferred Shares”), and the number of shares which
      shall constitute such series shall not be more than 1,396,000 shares,
      which number may be decreased (but not below the number thereof then
      outstanding) from time to time by the Board of
  Trustees.

              


      

       

      
        	
                Section
      2.

              	
                Definitions.  For
      purposes of the Series C Preferred Shares, the following terms shall have
      the meanings indicated:

              


      

       

      “Board of
Trustees” shall mean the Board of Trustees of the Trust or any committee
authorized by such Board of Trustees to perform any of its responsibilities with
respect to the Series C Preferred Shares.

       

      “By-Laws”
shall have the meaning set forth in Section 9(c).

       

      “Business
Day” shall mean any day other than a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York are not required
to be open.

       

      “Change
of Control” shall have the meaning set forth in Section 5(b).

       

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

       

      “Company
Conversion Date” shall have the meaning set forth in Section 6(r).

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      “Common
Share Equivalents” shall have the meaning set forth in Section
6(g)(v)(B).

       

      “Compliance
Failure” shall have the meaning set forth in Section 5(b).

       

      “Compliance
Redemption Demand” shall have the meaning set forth in Section
5(b).

       

      “Compliance
Redemption Price” shall have the meaning set forth in Section 5(b).

       

      “Constituent
Person” shall have the meaning set forth in Section 6
(h).

       

      “Conversion
Price” shall mean the conversion price per Common Share for which the Series C
Preferred Shares are convertible, as such Conversion Price may be adjusted
pursuant to Section 6. The initial conversion price shall be $14.00 (equivalent
to a conversion rate of 1.786 Common Shares for each Series C Preferred
Share).

       

      “Conversion
Notice” shall have the meaning set forth in Section 6(r).

       

      “Current
Market Price” of publicly traded common shares or any other class of shares of
beneficial interest or other security of the Trust or any other issuer for any
day shall mean the last reported sales price, regular way on such day, or, if no
sale takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the New York
Stock Exchange (“NYSE”) or, if such security is not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
security is listed or admitted for trading or, if not listed or admitted for
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotations System
(“NASDAQ”) or, if such security is not quoted on such National Market System,
the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices for
such security on such day shall not have been reported through NASDAQ, the
average of the bid and asked prices on such day as furnished by any NYSE member
firm regularly making a market in such security selected for such purpose by the
Chairman of the Board or the Board of Trustees.

       

      “Declaration
of Trust” shall mean the Second Amended and Restated Declaration of Trust of the
Trust, dated May 21, 2009, as the same may be amended and/or restated from time
to time.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      “Dividend
Payment Date” shall mean the last calendar day of January, April, July and
October in each year; provided, however, that if any Dividend Payment Date falls
on any day other than a Business Day, the dividend payment due on such Dividend
Payment Date shall be paid on the Business Day immediately following such
Dividend Payment Date.

       

      “Dividend
Periods” shall mean quarterly dividend periods commencing on February 1, May 1,
August 1 and November 1 of each year and ending on and including the day
preceding the first day of the next succeeding Dividend Period (other than the
initial Dividend Period, which shall commence on the Issue Date and end on and
include January 31, 2010).

       

      “Expiration
Time” shall have the meaning set forth in Section 6(g) (iv).

       

      “Fair
Market Value” shall mean the average of the daily Current Market Prices of a
Common Share during the five (5) consecutive Trading Days selected by the Trust
commencing not more than 20 Trading Days before, and ending not later than, the
earlier of the day in question and the day before the “ex date” with respect to
the issuance or distribution requiring such computation. The term “ex date,”
when used with respect to any issuance or distribution, means the first day on
which the Common Shares trade regular way, without the right to receive such
issuance or distribution, on the exchange or in the market, as the case may be,
used to determine that day’s Current Market Price.

       

      “Fully
Junior Shares” shall mean the Common Shares and any other class or series of
shares of beneficial interest of the Trust now or hereafter issued and
outstanding over which the Series C Preferred Shares have preference or priority
in both (i) the payment of dividends and (ii) the distribution of assets on any
liquidation, dissolution or winding up of the Trust.

       

      “Governance
Default” shall have the meaning set forth in Section 9(b).

       

      “Issue
Date” shall mean November 1, 2009.

       

      “Junior
Shares” shall mean the Common Shares and any other class or series of shares of
beneficial interest of the Trust now or hereafter issued and outstanding over
which the Series C Preferred Shares have preference or priority in the payment
of dividends or in the distribution of assets on any liquidation, dissolution or
winding up of the Trust.

       

      “Mandatory
Redemption Price” shall have the meaning set forth in Section 5(a).

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      “Non-Electing
Share” shall have the meaning set forth in Section 6 (h).

       

      “Operating
Partnership” means WRT Realty L.P.

       

      “OP
Units” shall mean partnership interests issued by the Operating
Partnership.

       

      “Parity
Shares” shall have the meaning set forth in Section 8(b).

       

      “Person”
shall mean any individual, corporation, partnership, firm, limited liability
company, joint venture, trust, association, unincorporated organization, group,
joint stock company, governmental body or other entity.

       

      “Purchased
Shares” shall have the meaning set forth in Section 6(g)(iv).

       

      “Redemption
Date” shall have the meaning set forth in Section 5(c).

       

      “Redemption
Price” shall have the meaning set forth in Section 5(c).

       

      “Rights
Offering” shall have the meaning set forth in Section 11.

       

      “Securities”
and “Security” shall have the meanings set forth in Section
6(g)(iii).

       

      “Senior
Shares” shall have the meaning set forth in Section 8(a).

       

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

       

      “Series
B-1 Preferred Shares Conversion Price” shall mean the “Conversion Price” as
defined in the Certificate of Designations of the Series B-1 Preferred Shares in
effect on the date hereof, or, if no Series B-1 Preferred Shares are then
outstanding, the Conversion Price of the Series B-1 Preferred Shares immediately
prior to the retirement of the Series B-1 Preferred Shares.

       

      “Series C
Preferred Shares” shall have the meaning set forth in Section 1.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      “set
apart for payment” shall be deemed to include, without any action other than the
following, the recording by the Trust in its accounting ledgers of any
accounting or bookkeeping entry which indicates, pursuant to a declaration of
dividends or other distribution by the Board of Trustees, the allocation of
funds to be so paid on any series or class of shares of beneficial interest of
the Trust; provided, however, that if any funds for any class or series of
Junior Shares or any class or series of shares of beneficial interest ranking on
a parity with the Series C Preferred Shares as to the payment of dividends are
placed in a separate account of the Trust or delivered to a disbursing, paying
or other similar agent, then “set apart for payment” with respect to the Series
C Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar
agent.

       

      “Trading
Day” shall mean any day on which the NYSE is open for trading, or if such
securities are not listed or admitted for trading on the NYSE, on the principal
national securities exchange on which such securities are listed or admitted, or
if not listed or admitted for trading on any national securities exchange, on
the National Market System of NASDAQ, or if such securities are not quoted on
such National Market System, in the applicable securities market in which the
securities are traded.

       

      “Transaction”
shall have the meaning set forth in Section 6(h).

       

      “Transfer
Agent” means Computershare, or such other agent or agents of the Trust as may be
designated by the Board of Trustees or their designee as the transfer agent,
registrar and dividend disbursing agent for the Series C Preferred
Shares.

       

      
        	
                Section
      3.

              	
                Dividends.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                The
      holders of Series C Preferred Shares shall be entitled to receive, when,
      as and if declared by the Board of Trustees, out of funds legally
      available for the payment of dividends, cumulative preferential dividends
      payable in cash in an amount per share equal to the greater of (i)
      $0.40625 per share per Dividend Period (equivalent to 6.5% of the
      liquidation preference per annum or (ii) the cash dividends (determined on
      each Dividend Payment Date) on the Common Shares, or portion thereof, into
      which a Series C Preferred Share is convertible, assuming for purposes
      hereof that the Conversion Price equals the Series B-1 Preferred Shares
      Conversion Price.  Such dividends, in the case of the
      applicability of the foregoing clause (ii), shall equal the number of
      Common Shares, or portion thereof, into which a Series C Preferred Share
      is convertible, assuming for purposes hereof that the Conversion Price
      equals the Series B-1 Preferred Shares Conversion Price, multiplied by the
      most current quarterly cash dividend declared or paid on a Common Share on
      or before the applicable Dividend Payment Date. Such dividends shall begin
      to accrue and shall be fully cumulative from the Issue Date,
      notwithstanding Section 3(e) and whether or not in any Dividend Period or
      Periods there shall be funds of the Trust legally available for the
      payment of such dividends, and shall be payable quarterly, when, as and if
      declared by the Board of Trustees, in arrears on Dividend Payment Dates,
      commencing on January 31, 2010.  Each such dividend shall be
      payable in arrears to the holders of record of Series C Preferred Shares
      as they appear in the records of the Trust at the close of business on
      such record dates, not less than 10 nor more than 50 days preceding such
      Dividend Payment Dates, as shall be fixed by the Board of Trustees.
      Accrued and unpaid dividends for any past Dividend Periods may be declared
      and paid at any time and for such interim periods, without reference to
      any regular Dividend Payment Date, to holders of record on such date, not
      less than 10 nor more than 50 days preceding the payment date thereof, as
      may be fixed by the Board of Trustees. Any dividend payment made on Series
      C Preferred Shares shall first be credited against the earliest accrued
      but unpaid dividend due with respect to Series C Preferred Shares which
      remains payable.

              


      

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (b)

              	
                The
      amount of dividends payable for any period shorter than a full Dividend
      Period, on the Series C Preferred Shares shall be computed on the basis of
      a 360-day year of twelve 30-day months. Holders of Series C Preferred
      Shares shall not be entitled to any dividends, whether payable in cash,
      property or shares, in excess of cumulative dividends, as herein provided,
      on the Series C Preferred Shares. No interest, or sum of money in lieu of
      interest, shall be payable in respect of any dividend payment or payments
      on the Series C Preferred Shares which may be in
  arrears.

              


      

       

      
        	
                 
      

              	
                (c)

              	
                So
      long as any Series C Preferred Shares are outstanding, no dividends,
      except as described in the immediately following sentence, shall be
      declared or paid or set apart for payment on any class or series of Parity
      Shares for any period unless (i) full cumulative dividends have been or
      contemporaneously are declared and paid or declared and a sum sufficient
      for the payment thereof set apart for such payment on the Series C
      Preferred Shares for all Dividend Periods terminating on or prior to the
      dividend payment date on such class or series of Parity Shares, (ii) no
      Compliance Failure shall have occurred, and (iii) sufficient funds shall
      have been or contemporaneously are declared and paid or declared and set
      apart for the payment of the dividend for the current Dividend Period with
      respect to the Series C Preferred Shares and the current dividend period
      with respect to such Parity Shares.  When dividends are not paid
      in full or a sum sufficient for such payment is not set apart, as
      aforesaid, all dividends declared upon Series C Preferred Shares and all
      dividends declared upon any other class or series of Parity Shares shall
      be declared ratably in proportion to the respective amounts of dividends
      accumulated and unpaid on the Series C Preferred Shares and accumulated
      and unpaid on such Parity Shares.

              


      

       

      
        	
                 
      

              	
                (d)

              	
                So
      long as any Series C Preferred Shares are outstanding, no dividends (other
      than dividends or distributions paid solely in shares of, or options,
      warrants or rights to subscribe for or purchase shares of, Fully Junior
      Shares) shall be declared or paid or set apart for payment or other
      distribution shall be declared or made or set apart for payment upon
      Junior Shares, nor shall any Junior Shares be redeemed, purchased or
      otherwise acquired (or any moneys be paid to or made available for a
      sinking fund for the redemption of any Junior Shares) by the Trust,
      directly or indirectly (except by conversion into or exchange for Fully
      Junior Shares), unless in each case (i) the full cumulative dividends on
      all outstanding Series C Preferred Shares and any other Parity Shares of
      the Trust shall have been or contemporaneously are declared and paid or
      declared and set apart for payment for all past Dividend Periods with
      respect to the Series C Preferred Shares and all past dividend periods
      with respect to such Parity Shares, (ii) no Compliance Failure shall have
      occurred, and (iii) sufficient funds shall have been or contemporaneously
      are declared and paid or declared and set apart for the payment of the
      dividend for the current Dividend Period with respect to the Series C
      Preferred Shares and the current dividend period with respect to such
      Parity Shares.

              


      

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (e)

              	
                No
      distributions on Series C Preferred Shares shall be declared by the Board
      of Trustees or paid or set apart for payment by the Trust at such time as
      the terms and provisions of any agreement of the Trust, including any
      agreement relating to its indebtedness, prohibits such declaration,
      payment or setting apart for payment or provides that such declaration,
      payment or setting apart for payment would constitute a breach thereof or
      a default thereunder, or if such declaration or payment shall be
      restricted or prohibited by law.

              


      

       

      
        	
                 
      

              	
                (f)

              	
                Non-Redemption and
      Increased Rate.  In the event the Trust (i) pays any
      dividend to holders of Parity Shares and fails to pay a concurrent
      dividend to the holders of the Series C Preferred Shares in accordance
      with Section 3(c) above, or (ii) the Trust fails to redeem Series C
      Preferred Shares in accordance with Section 5 below, or (iii) the Trust
      fails to pay the dividend payable on the first Dividend Payment Date
      following the Issue Date, then dividends shall thereafter accrue on Series
      C Preferred Shares at a rate 250 basis points higher than the rate
      specified in Section 3(a), until the Trust is again in compliance with
      Section 3(c), redeems the Series C Preferred Shares in accordance with
      Section 5, and pays the dividend payable on the first Dividend Payment
      Date, as applicable, at which time the dividend rate shall revert to the
      rate provided in Section 3(a).

              


      

       

      
        	
                Section
      4.

              	
                Liquidation
      Preference.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                In
      the event of any liquidation, dissolution or winding up of the Trust,
      whether voluntary or involuntary, before any payment or distribution of
      the assets of the Trust (whether capital or surplus) shall be made to or
      set apart for the holders of Junior Shares but after any payment or
      distribution of the assets of the Trust (whether capital or surplus) shall
      be made to or set apart for the holders of Senior Shares, the holders of
      the Series C Preferred Shares shall be entitled to receive Twenty-Five
      Dollars ($25.00) per Series C Preferred Share plus an amount equal to all
      dividends (whether or not earned or declared) accrued and unpaid thereon
      to the date of final distribution to such holders (the “Liquidation
      Preference”), without interest; but such holders shall not be entitled to
      any further payment. If, upon any liquidation, dissolution or winding up
      of the Trust, the assets of the Trust, or proceeds thereof, distributable
      among the holders of the Series C Preferred Shares shall be insufficient
      to pay in full the preferential amount aforesaid and liquidating payments
      on any other shares of any class or series of Parity Shares, then such
      assets, or the proceeds thereof, shall be distributed among the holders of
      Series C Preferred Shares and any such other Parity Shares ratably in
      accordance with the respective amounts that would be payable on such
      Series C Preferred Shares and any such other Parity Shares if all amounts
      payable thereon were paid in full. For the purposes of this Section 4, (i)
      a consolidation or merger of the Trust with one or more corporations, real
      estate investment trusts or other entities, (ii) a sale, lease or
      conveyance of all or substantially all of the Trust’s property or business
      or (iii) a statutory share exchange shall not be deemed to be a
      liquidation, dissolution or winding up, voluntary or involuntary, of the
      Trust.

              


      

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (b)

              	
                Subject
      to the rights of the holders of shares of any series or class or classes
      of shares of beneficial interest ranking on a parity with or prior to the
      Series C Preferred Shares upon liquidation, dissolution or winding up,
      upon any liquidation, dissolution or winding up of the Trust, after
      payment shall have been made in full to the holders of the Series C
      Preferred Shares, as provided in this Section 4, any other series or class
      or classes of Junior Shares shall, subject to the respective terms and
      provisions (if any) applying thereto, be entitled to receive any and all
      assets remaining to be paid or distributed, and the holders of the Series
      C Preferred Shares shall not be entitled to share
  therein.

              


      

       

      
        	
                Section
      5.

              	
                Redemption of
      Shares.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                Mandatory
      Redemption.  If any Series C Preferred Shares are
      outstanding on February 28, 2012, the Trust shall redeem all such
      outstanding Series C Preferred Shares on such date at a price (the
      “Mandatory Redemption Price”) equal to 100% of their Liquidation
      Preference, subject to the provisions described
  below.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                Compliance
      Failures.  The occurrence of any of the following events
      shall be considered a “Compliance
Failure”:

              


      

       

      (1)           the
sale, lease or conveyance to a third party of substantially all the assets of
the Trust, a consolidation or merger of the Trust with or into another entity if
the holders of the Trust’s voting securities do not hold a majority of the
voting securities of the surviving entity or Michael Ashner does not continue to
serve as chief executive officer of the Trust or of the surviving entity, or the
sale in a single transaction or series of related transactions of a majority of
the issued and outstanding Common Shares of the Trust (any such event being
referred to herein as a “Change of Control”);

      


      (2)           The
departure or termination (whether voluntary or involuntary) of Michael Ashner,
other than in the event of death or disability, or any breach of that certain
Exclusivity Services Agreement, dated December 31, 2003, between the Trust and
Michael Ashner (without regard to any amendment thereof after the date
hereof).

      


      (3)           Any
delay in the audit of the Trust’s consolidated annual financial statements for a
given fiscal year for more than 180 calendar days after the end of such fiscal
year;

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

       

      (4)           Any
failure by the Trust to file required reports or forms pursuant to the
Sarbanes-Oxley Act of 2002 (other than a delay in the filing of a 10-K for the
reasons listed in paragraph (3) above);

      


      (5)           The
termination of the Trust’s election to be or its failure to qualify as a “real
estate investment trust” under Section 856 of the Internal Revenue Code;
or

      


      (6)           The
receipt by the Trust of a final notice of delisting from the New York Stock
Exchange.

      


      In the
event of a Compliance Failure, the Trust shall give written notice of such
Compliance Failure to each holder of Series C Preferred Shares within five
business days and any holder of Series C Preferred Shares shall have the right,
by written notice delivered to the Trust (a “Compliance Redemption Demand”), to
request that the Trust redeem, within 30 days of receipt of the Compliance
Redemption Demand, all or any portion of the Series C Preferred Shares held by
such holder at a price per share (the “Compliance Redemption Price”) equal to
100% of the Liquidation Preference of such Series C Preferred
Shares.  In addition, in the event of the death or disability of
Michael Ashner, and the occurrence within 12 months thereafter of any Change of
Control, any holder of Series C Preferred Shares shall have the right, by
delivery to the Trust of a Compliance Redemption Demand, to request that the
Trust redeem, within 30 days of receipt of the Compliance Redemption Demand, all
or any portion of the Series C Preferred Shares held by such  holder
at a Compliance Redemption Price equal to 100% of the Liquidation Preference for
such Series C Preferred Shares.  The Trust shall be required to redeem
all Series C Preferred Shares for which redemption is requested in Compliance
Redemption Demands in accordance with the provisions of Section 5(c) only in the
event that there are then no Senior Shares outstanding or to the extent such
redemption is not prohibited by the terms of any Senior Shares.

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (c)

              	
                Redemption
      Procedures.   On or prior to the date (a “Redemption
      Date”) of a redemption pursuant to sections (a) or (b) above, the Trust
      shall deposit the aggregate Mandatory Redemption Price or Compliance
      Redemption Price payable for all Series C Preferred Shares to be redeemed
      (such aggregate amount being referred to as the “Redemption Price”) with a
      bank or trust corporation having aggregate capital and surplus in excess
      of $500,000,000 as a trust fund for the benefit of the holders of the
      shares of Series C Preferred Shares, with irrevocable instructions and
      authority to the bank or trust corporation to pay the allocable portion of
      the Redemption Price for such shares to their respective holders on or
      after the Redemption Date upon receipt of the certificate or certificates
      of the shares of Series C Preferred Shares to be redeemed.  From
      and after the Redemption Date, unless there shall have been a default in
      payment of the Redemption Price, all rights of the holders of shares of
      Series C Preferred Shares as holders of Series C Preferred Shares (except
      the right to receive the Redemption Price upon surrender of their
      certificate or certificates) shall cease as to those shares of Series C
      Preferred Shares redeemed, and such shares shall not thereafter be
      transferred on the books of the Trust or be deemed to be outstanding for
      any purpose whatsoever.  If on the Redemption Date the funds of
      the Trust legally available for redemption of shares of Series C Preferred
      Shares are insufficient to redeem the total number of shares of Series C
      Preferred Shares to be redeemed on such date, then the Trust will use
      those funds which are legally available therefor to redeem the maximum
      possible number of shares of Series C Preferred Shares ratably among the
      holders of such shares to be redeemed based upon their holdings of Series
      C Preferred Shares.  The shares of Series C Preferred Shares not
      redeemed shall remain outstanding and entitled to all the rights and
      preferences provided herein.  At any time thereafter when
      additional funds of the Trust are legally available for the redemption of
      shares of Series C Preferred Shares such funds will immediately be used to
      redeem the balance of the shares of Series C Preferred Shares to be
      redeemed unless, in the case of a redemption pursuant to Section 5(b)
      above, a holder of such shares elects otherwise.  The Trust
      shall not redeem any Parity Shares except ratably with the Series C
      Preferred Shares.  No dividends or other distributions shall be
      declared or paid on, nor shall the Trust redeem, purchase or acquire any
      Junior Shares unless the Redemption Price per share of all shares elected
      to be redeemed shall have been paid in full.  Until the
      Redemption Price for each share of Series C Preferred Shares elected or
      required to be redeemed shall have been paid in full, such share of Series
      C Preferred Shares shall remain outstanding for all purposes and entitle
      the holder thereof to all the rights and privileges provided herein,
      including, without limitation, that dividends and interest thereon shall
      continue to accrue and, if unpaid prior to the date such shares are
      redeemed, shall be included as part of the Redemption Price as provided in
      this Section 5(c).

              


      

       

      
        	
                Section
      6.

              	
                Conversion.  Holders
      of Series C Preferred Shares shall have the right to convert all or a
      portion of such shares into Common Shares, as
  follows:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                Subject
      to and upon compliance with the provisions of this Section 6, a holder of
      Series C Preferred Shares shall have the right, at his or her option, at
      any time to convert such shares into the number of Common Shares obtained
      by dividing the aggregate liquidation preference (excluding any accrued
      and unpaid dividends) of such shares by the Conversion Price (as in effect
      at the time and on the date provided for in  paragraph (e) of
      this Section 6) by surrendering such shares to be converted, such
      surrender to be made in the manner provided in paragraph (b) of this
      Section 6; provided, however, that the right to convert shares called for
      redemption pursuant to Section 5 shall terminate at the close of business
      on the Redemption Date fixed for such redemption, unless the Trust shall
      default in making payment of the amount payable upon such redemption under
      Section 5.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                In
      order to exercise the conversion right, the holder of each Series C
      Preferred Share to be converted shall surrender the certificate
      representing such share, duly endorsed or assigned to the Trust or in
      blank, at the office of the Transfer Agent, accompanied by written notice
      to the Trust that the holder thereof elects to convert such Series C
      Preferred Shares. Unless the shares issuable on conversion are to be
      issued in the same name as the name in which such Series C Preferred Share
      is registered, each share surrendered for conversion shall be accompanied
      by instruments of transfer, in form satisfactory to the Trust, duly
      executed by the holder or such holder’s duly authorized attorney and an
      amount sufficient to pay any transfer or similar tax (or evidence
      reasonably satisfactory to the Trust demonstrating that such taxes have
      been paid).

              


      

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (c)

              	
                Holders
      of Series C Preferred Shares at the close of business on a dividend
      payment record date shall be entitled to receive the dividend payable on
      such shares on the corresponding Dividend Payment Date notwithstanding the
      conversion thereof following such dividend payment record date and prior
      to such Dividend Payment Date. However, Series C Preferred Shares
      surrendered for conversion during the period between the close of business
      on any dividend payment record date and the opening of business on the
      corresponding Dividend Payment Date must be accompanied by payment of an
      amount equal to the dividend payable on such shares on such Dividend
      Payment Date. A holder of Series C Preferred Shares on a dividend payment
      record date who (or whose transferee) tenders any such shares for
      conversion into Common Shares on the corresponding Dividend Payment Date
      will receive the dividend payable by the Trust on such Series C Preferred
      Shares on such date, and the converting holder need not include payment of
      the amount of such dividend upon surrender of Series C Preferred Shares
      for conversion. Except as provided above, the Trust shall make no payment
      or allowance for unpaid dividends, whether or not in arrears, on converted
      shares or for dividends on the Common Shares issued upon such
      conversion.

              


      

       

      
        	
                 
      

              	
                (d)

              	
                As
      promptly as practicable after the surrender of certificates for Series C
      Preferred Shares as aforesaid, the Trust shall issue and shall deliver at
      such office to such holder, or on his or her written order, a certificate
      or certificates for the number of full Common Shares issuable upon the
      conversion of such shares in accordance with provisions of this Section 6,
      and any fractional interest in respect of a Common Share arising upon such
      conversion shall be settled as provided in paragraph (f) of this Section
      6.

              


      

       

      
        	
                 
      

              	
                (e)

              	
                Each
      conversion shall be deemed to have been effected immediately prior to the
      close of business on the date on which the certificates for Series C
      Preferred Shares shall have been surrendered and such notice shall have
      been received by the Trust as aforesaid (and, if applicable, payment of an
      amount equal to the dividend payable on such shares shall have been
      received by the Trust as described above), and the Person or Persons in
      whose name or names any certificate or certificates for Common Shares
      shall be issuable upon such conversion shall be deemed to have become the
      holder or holders of record of the shares represented thereby at such time
      on such date and such conversion shall be at the Conversion Price in
      effect at such time on such date unless the share transfer books of the
      Trust shall be closed on that date, in which event such Person or Persons
      shall be deemed to have become such holder or holders of record at the
      close of business on the next succeeding day on which such share transfer
      books are open, but such conversion shall be at the Conversion Price in
      effect on the date on which such shares shall have been surrendered and
      such notice received by the Trust.

              


      

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (f)

              	
                No
      fractional shares or scrip representing fractions of Common Shares shall
      be issued upon conversion of the Series C Preferred Shares. Instead of any
      fractional interest in a Common Share that would otherwise be deliverable
      upon the conversion of a Series C Preferred Share, the Trust shall pay to
      the holder of such share an amount in cash (computed to the nearest cent
      with $.005 being rounded upward) based upon the Current Market Price of
      Common Shares on the Trading Day immediately preceding the date of
      conversion. If more than one certificate representing Series C Preferred
      Shares shall be surrendered for conversion at one time by the same holder,
      the number of full Common Shares issuable upon conversion thereof shall be
      computed on the basis of the aggregate number of Series C Preferred Shares
      so surrendered.

              


      

       

      
        	
                 
      

              	
                (g)

              	
                The
      Conversion Price shall be adjusted from time to time as
      follows:

              


      

       

      
        	
                 
      

              	
                (i)

              	
                If
      the Trust shall after the Issue Date (A) pay a dividend or make a
      distribution on its capital shares in Common Shares, (B) subdivide its
      outstanding Common Shares into a greater number of shares, or (C) combine
      its outstanding Common Shares into a smaller number of shares, the
      Conversion Price in effect at the opening of business on the day following
      the date fixed for the determination of shareholders entitled to receive
      such dividend or distribution or at the opening of business on the
      Business Day next following the day on which such subdivision or
      combination becomes effective, as the case may be, shall be adjusted so
      that the holder of any Series C Preferred Share thereafter surrendered for
      conversion shall be entitled to receive the number of Common Shares that
      such holder would have owned or have been entitled to receive after the
      happening of any of the events described above as if such Series C
      Preferred Shares had been converted immediately prior to the record date
      in the case of a dividend or distribution or the effective date in the
      case of a subdivision or combination.  An adjustment made
      pursuant to this subparagraph (i) shall become effective immediately after
      the opening of business on the Business Day next following the record date
      (except as provided in paragraph (k) below) in the case of a dividend or
      distribution and shall become effective immediately after the opening of
      business on the Business Day next following the effective date in the case
      of a subdivision or combination.

              


      

       

      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (ii)

              	
                If
      the Trust shall issue after the Issue Date rights, options or warrants to
      all holders of Common Shares entitling them (for a period expiring within
      45 days after the record date mentioned below) to subscribe for or
      purchase Common Shares at a price per share less than 94% (100% if a
      stand-by underwriter is used and charges the Trust a commission) of the
      Fair Market Value per Common Share on the record date for the
      determination of shareholders entitled to receive such rights, options or
      warrants, then the Conversion Price in effect at the opening of business
      on the Business Day next following such record date shall be adjusted to
      equal the price determined by multiplying (A) the Conversion Price in
      effect immediately prior to the opening of business on the Business Day
      next following the date fixed for such determination by (B) a fraction,
      the numerator of which shall be the sum of (x) the number of Common Shares
      outstanding on the close of business on the date fixed for such
      determination and (y) the number of shares that the aggregate
      proceeds to the Trust from the exercise of such rights, options or
      warrants for Common Shares would purchase at 94% of such Fair Market Value
      (or 100% in the case of a stand-by underwriting), and the denominator of
      which shall be the sum of (x) the number of Common Shares outstanding on
      the close of business on the date fixed for such determination and (y) the
      number of additional Common Shares offered for subscription or purchase
      pursuant to such rights, options or warrants. Such adjustment shall become
      effective immediately after the opening of business on the day next
      following such record date (except as provided in paragraph (k) below). In
      determining whether any rights, options or warrants entitle the holders of
      Common Shares to subscribe for or purchase Common Shares at less than 94%
      of such Fair Market Value (or 100% in the case of a stand-by
      underwriting), there shall be taken into account any consideration
      received by the Trust upon issuance and upon exercise of such rights,
      options or warrants, the value of such consideration, if other than cash,
      to be reasonably determined by the Chairman of the Board or the Board of
      Trustees.

              


      

       

      
        
          
          

        

        
          14

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (iii)

              	
                If
      after the Issue Date of the Trust shall distribute to all holders of its
      Common Shares any shares of beneficial interest of the Trust (other than
      Common Shares) or evidence of its indebtedness or assets (excluding cash
      dividends required in order to satisfy distribution requirements to
      maintain the Trust’s status as a real estate investment trust under
      Section 856 of the Internal Revenue Code and avoid entity level taxes), or
      rights, options or warrants to subscribe for or purchase any of its
      securities (excluding those rights, options and warrants issued to all
      holders of Common Shares entitling them for a period expiring within 45
      days after the record date referred to in subparagraph (ii) above to
      subscribe for or purchase Common Shares, which rights and warrants are
      referred to in and treated under subparagraph (ii) above) (any of the
      foregoing being hereinafter in this subparagraph (iii) collectively called
      the “Securities” and individually a “Security”), then in each such case
      the Conversion Price shall be adjusted so that it shall equal the price
      determined by multiplying (x) the Conversion Price in effect immediately
      prior to the close of business on the date fixed for the determination of
      shareholders entitled to receive such distribution by (y) a fraction, the
      numerator of which shall be the Fair Market Value per Common Share on the
      record date mentioned below less the then fair market value (as reasonably
      determined by the Chairman of the Board or the Board of Trustees, whose
      reasonable determination shall be conclusive), of the portion of the
      shares of beneficial interest or assets or evidences of indebtedness so
      distributed or of such rights, options or warrants applicable to one
      Common Share, and the denominator of which shall be the Fair Market Value
      per Common Share on the record date mentioned below. Such adjustment shall
      become effective immediately at the opening of business on the Business
      Day next following (except as provided in paragraph (k) below) the record
      date for the determination of shareholders entitled to receive such
      distribution. For the purposes of this subparagraph (iii), the
      distribution of a Security, which is distributed not only to the holders
      of the Common Shares on the date fixed for the determination of
      shareholders entitled to such distribution of such Security, but also is
      distributed with each Common Share delivered to a Person converting a
      Series C Preferred Share after such determination date, shall not require
      an adjustment of the Conversion Price pursuant to this subparagraph (iii);
      provided that on the date, if any, on which a Person converting a Series C
      Preferred Share would no longer be entitled to receive such Security with
      a Common Share (other than as a result of the termination of all such
      Securities), a distribution of such Securities shall be deemed to have
      occurred and the Conversion Price shall be adjusted as provided in this
      subparagraph (iii) (and such day shall be deemed to be “the date fixed for
      the determination of the shareholders entitled to receive such
      distribution” and “the record date” within the meaning of the two
      preceding sentences).

              


      

       

      
        	
                 
      

              	
                (iv)

              	
                In
      case a tender or exchange offer made by the Trust or any subsidiary of the
      Trust for all or any portion of the Common Shares shall expire and such
      tender or exchange offer shall involve the payment by the Trust or such
      subsidiary of consideration per Common Share having a fair market value
      (as reasonably determined by the Board of Trustees, whose reasonable
      determination shall be conclusive and described in a resolution of the
      Board of Trustees), at the last time (the “Expiration Time”) tenders or
      exchanges may be made pursuant to such tender or exchange offer, that
      exceeds the Current Market Price per Common Share on the Trading Day next
      succeeding the Expiration Time, the Conversion Price shall be reduced so
      that the same shall equal the price determined by multiplying the
      Conversion Price in effect immediately prior to the effectiveness of the
      Conversion Price reduction contemplated by this subparagraph, by a
      fraction of which the numerator shall be the number of Common Shares
      outstanding (including any tendered or exchanged shares) at the Expiration
      Time, multiplied by the Current Market Price per Common Share on the
      Trading Day next succeeding the Expiration Time, and the denominator shall
      be the sum of (A) the fair market value determined as aforesaid of the
      aggregate consideration payable to shareholders based upon the acceptance
      (up to any maximum specified in the terms of the tender or exchange offer)
      of all shares validly tendered or exchanged and not withdrawn as of the
      Expiration Time (the shares deemed so accepted, up to any maximum, being
      referred to as the “Purchased Shares”) and (B) the product of the number
      of Common Shares outstanding (less any Purchased Shares) at the Expiration
      Time and the Current Market Price per Common Share on the Trading Day next
      succeeding the Expiration Time, such reduction to become effective
      immediately prior to the opening of business on the day following the
      Expiration Time.

              


      

       

      
        
          
          

        

        
          15

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (v)

              	
                (A)

              	
                In
      case the Company shall after the Issue Date issue or sell any Common
      Shares (except as provided (i) in subparagraph (6)(g)(vi), (ii) in
      connection with a firm commitment underwritten public offering of Common
      Shares registered under applicable securities laws and priced at not less
      than 94% of their Fair Market Value at the time of the offering or (iii)
      in a private offering of Common Shares within the 12 month period
      commencing on the Issue Date) for a consideration per share less than the
      Current Market Price on the date of such issuance or sale, the Conversion
      Price shall be adjusted so that the same shall equal the price determined
      by multiplying the Conversion Price in effect immediately prior to the
      date of such issuance or sale by a fraction whose numerator shall be the
      sum of (i) the number of shares of Common Shares outstanding immediately
      prior to such issuance or sale (including the number of Common Shares
      issuable upon conversion of all outstanding Series C Preferred Shares)
      multiplied by the Current Market Price on the date of such issuance or
      sale, and (ii) the consideration received by the Trust upon such issuance
      or sale, and whose denominator shall be the total number of Common Shares
      outstanding immediately after such issuance or sale (including the number
      of Common Shares issuable upon conversion of all outstanding Series C
      Preferred Shares) multiplied by the Current Market Price on the date of
      such issuance or sale.  Subject to subsection (6)(g)(vi), such
      adjustment shall be made whenever such Common Shares are issued or
      sold.

              


      

       

      
        	
                 
      

              	
                (B)

              	
                In
      case the Company shall after the Issue Date issue or sell (other than an
      issuance to all holders of Common Shares covered by subsection (6)(g)(ii))
      any securities directly or indirectly convertible into (or exercisable
      for) Common Shares (“Common Share Equivalents”) entitling the holders
      thereof to convert such securities into (or exercise such securities to
      acquire) Common Shares or Common Share Equivalents (except in a firm
      commitment underwritten public offering of securities registered under
      applicable securities laws priced at a conversion or exercise price of not
      less than 94% of their Fair Market Value at the time of the offering or a
      private offering within the 12 month period commencing on the Issue Date),
      at a price per share less than the Current Market Price on the date of
      such issuance or sale, the Conversion Price shall be adjusted so that the
      same shall equal the price determined by multiplying the Conversion Price
      in effect immediately prior to the date of such issuance or sale of such
      securities by a fraction whose numerator shall be the number of Common
      Shares outstanding on the date of such issuance or sale of such securities
      (including the number of Common Shares issuable upon conversion of all
      outstanding Series C Preferred Shares) plus the number of Common Shares
      which the aggregate exercise price of the Common Shares issuable upon
      conversion (or exercise) of all such securities would purchase at such
      Current Market Price, and whose denominator shall be the number of Common
      Shares outstanding on the date of issuance or sale of such securities
      (including the number of Common Shares issuable upon conversion of all
      outstanding Series C Preferred Shares) plus the number of additional
      Common Shares issuable upon conversion (or exercise) of all such
      securities.  Subject to subsection (6)(g)(vi), such adjustment
      shall be made whenever such securities are issued.  Following
      adjustment of the Conversion Price upon the issuance or sale of such
      securities no further adjustments shall be made upon the actual conversion
      of such securities into, or the exercise of such securities to acquire,
      Common Shares.

              


      

       

      
        
          
          

        

        
          16

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (C)

              	
                For
      the purpose of making any adjustment in the Conversion Price or number of
      shares of Common Shares issuable upon conversion of the Series C Preferred
      Shares, as provided above, the following provisions shall be
      applicable:

              


      

       

      (1)           In
case of the issuance of Common Shares or Common Share Equivalents for
consideration in whole or in part for cash, the consideration shall be deemed to
be the amount of cash paid therefor, plus the value of any property other than
cash received by the Trust as determined in accordance with clause (2)
below.

       

      (2)           In
case of the issuance of Common Shares or Common Share Equivalents for
consideration in whole or in part in property or consideration other than cash,
the value of such property or consideration other than cash shall be deemed to
be the fair value thereof as reasonably determined by the Board of
Trustees.

       

      
        	
                 
      

              	
                (vi)

              	
                No
      adjustment in the Conversion Price shall be required unless such
      adjustment would require a cumulative increase or decrease of at least 1%
      in such price; provided, however, that any adjustments that by reason of
      this subparagraph (vi) are not required to be made shall be carried
      forward and taken into account in any subsequent adjustment until made;
      and provided, further, that any adjustment shall be required and made in
      accordance with the provisions of this Section 6 (other than this
      subparagraph (vi)) not later than such time as may be required in order to
      preserve the tax-free nature of a distribution to the holders of Common
      Shares. Notwithstanding any other provisions of this Section 6, the Trust
      shall not be required to make any adjustment of the Conversion Price for
      (i) the issuance of any Common Shares pursuant to any plan providing for
      the reinvestment of dividends or interest payable on securities of the
      Trust and the investment of additional optional amounts in Common Shares
      under such plan, (ii) Common Shares issuable upon the exercise of stock
      options or other awards made or denominated in Common Shares under any of
      the Trust’s equity compensation plans including any stock option, stock
      purchase, restricted stock or similar plan hereafter adopted by the Board
      of Trustees and approved by the stockholders of the Trust up to a maximum
      amount of five percent of the then outstanding Common Shares, (iii) Common
      Shares or OP Units issued in connection with a direct or indirect
      acquisition by the Trust or the Operating Partnership of 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, (iv) Common Shares issued in redemption of OP
      Units, (v) Common Shares or OP Units issued upon conversion or exercise of
      warrants, options, or other securities outstanding on the Issue Date, or
      (vi) the issuance of Series C Preferred Shares or Common Shares issued
      upon conversion of Series C Preferred Shares or (vii) the issuance of
      Common Shares issued upon conversion of Series C Preferred
      Shares.  All calculations under this Section 6 shall be made to
      the nearest cent (with $.005 being rounded upward) or to the nearest
      one-tenth of a share (with .05 of a share being rounded upward), as the
      case may be. Anything in this paragraph (g) to the contrary
      notwithstanding, the Trust shall be entitled, to the extent permitted by
      law, to make such reductions in the Conversion Price, in addition to those
      required by this paragraph (g), as it in its discretion shall determine to
      be advisable in order that any share dividends, subdivision of shares,
      reclassification or combination of shares, distribution of rights or
      warrants to purchase shares or securities, or distribution of other assets
      (other than cash dividends) hereafter made by the Trust to its
      shareholders shall not be taxable.

              


      

       

      
        
          
          

        

        
          17

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (h)

              	
                If
      the Trust shall be a party to any transaction (including without
      limitation a merger, consolidation, statutory share exchange, self tender
      offer for all or substantially all Common Shares, sale of all or
      substantially all of the Trust’s assets or recapitalization of the Common
      Shares and excluding any transaction as to which subparagraph (g)(i) of
      this Section 6 applies) (each of the foregoing being referred to herein as
      a “Transaction”), in each case as a result of which all or substantially
      all Common Shares are converted into the right to receive shares,
      securities or other property (including cash or any combination thereof),
      each Series C Preferred Share which is not redeemed or converted prior to
      such Transaction shall thereafter be convertible into the kind and amount
      of shares, securities and other property (including cash or any
      combination thereof) receivable upon the consummation of such Transaction
      by a holder of that number of Common Shares into which one Series C
      Preferred Share was convertible immediately prior to such Transaction,
      assuming such holder of Common Shares (i) is not a Person with which the
      Trust consolidated or into which the Trust merged or which merged into the
      Trust or to which such sale or transfer was made, as the case may be
      (“Constituent Person”), or an affiliate of a Constituent Person and (ii)
      failed to exercise his rights of election, if any, as to the kind or
      amount of shares, securities and other property (including cash)
      receivable upon such Transaction (provided that if the kind or amount of
      shares, securities and other property (including cash) receivable upon
      such Transaction is not the same for each Common Share held immediately
      prior to such Transaction by other than a Constituent Person or an
      affiliate thereof and in respect of which such rights of election shall
      not have been exercised (“Non-Electing Share”), then for the purpose of
      this paragraph (h) the kind and amount of shares, securities and other
      property (including cash) receivable upon such Transaction by each
      Non-Electing Share shall be deemed to be the kind and amount so receivable
      per share by a plurality of the Non-Electing Shares). The Trust shall not
      be a party to any Transaction unless the terms of such Transaction are
      consistent with the provisions of this paragraph (h), and it shall not
      consent or agree to the occurrence of any Transaction until the Trust has
      entered into an agreement with the successor or purchasing entity, as the
      case may be, for the benefit of the holders of the Series C Preferred
      Shares that will contain provisions enabling the holders of the Series C
      Preferred Shares that remain outstanding after such Transaction to convert
      into the consideration received by holders of Common Shares at the
      Conversion Price in effect immediately prior to such Transaction. The
      provisions of this paragraph (h) shall similarly apply to successive
      Transactions.

              


      

       

      
        
          
          

        

        
          18

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (i)

              	
                If
      (i) the Trust shall declare a dividend (or any other distribution) on the
      Common Shares (other than cash dividends or distributions paid with
      respect to the Common Shares required in order to satisfy distribution
      requirements to maintain the Trust’s status as a real estate investment
      trust and avoid entity level taxes); or (ii) the Trust shall authorize the
      granting to the holders of Common Shares of rights, options or warrants to
      subscribe for or purchase any shares of any class or any other rights,
      options or warrants; or (iii) there shall be any reclassification of the
      Common Shares (other than an event to which subparagraph (g)(i) of this
      Section 6 applies) or any consolidation or merger to which the Trust is a
      party and for which approval of any shareholders of the Trust is required,
      or a statutory share exchange, or a self tender offer by the Trust for all
      or substantially all of its outstanding Common Shares or the sale or
      transfer of all or substantially all of the assets of the Trust as an
      entirety; or (iv) there shall occur the voluntary or involuntary
      liquidation, dissolution or winding up of the Trust; then the Trust shall
      cause to be filed with the Transfer Agent and shall cause to be mailed to
      the holders of Series C Preferred Shares at their addresses as shown on
      the records of the Trust, as promptly as possible, but at least 10 days
      prior to the applicable date hereinafter specified, a notice stating (A)
      the date on which a record is to be taken for the purpose of such
      dividend, distribution or granting of rights, options or warrants, or, if
      a record is not to be taken, the date as of which the holders of Common
      Shares of record to be entitled to such dividend, distribution or rights,
      options or warrants are to be determined or (B) the date on which such
      reclassification, consolidation, merger, statutory share exchange, sale,
      transfer, liquidation, dissolution or winding up is expected to become
      effective, and the date as of which it is expected that holders of Common
      Shares of record shall be entitled to exchange their Common Shares for
      securities or other property, if any, deliverable upon such
      reclassification, consolidation, merger, statutory share exchange, sale,
      transfer, liquidation, dissolution or winding up. Failure to give or
      receive such notice or any defect therein shall not affect the legality or
      validity of the proceedings described in this Section
  6.

              


      

       

      
        
          
          

        

        
          19

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (j)

              	
                Whenever
      the Conversion Price is adjusted as herein provided, the Trust shall
      promptly file with the Transfer Agent an officer’s certificate setting
      forth the Conversion Price after such adjustment and setting forth a brief
      statement of the facts requiring and calculation of such adjustment.
      Promptly after delivery of such certificate, the Trust shall prepare a
      notice of such adjustment of the Conversion Price setting forth the
      adjusted Conversion Price and the effective date of such adjustment and
      shall mail such notice of such adjustment of the Conversion Price to the
      holder of each Series C Preferred Share at such holder’s last address as
      shown on the records of the Trust.

              


      

       

      
        	
                 
      

              	
                (k)

              	
                In
      any case in which paragraph (g) of this Section 6 provides that an
      adjustment shall become effective on the day next following the record
      date for an event, the Trust may defer until the occurrence of such event
      (A) issuing to the holder of any Series C Preferred Share converted after
      such record date and before the occurrence of such event the additional
      Common Shares issuable upon such conversion by reason of the adjustment
      required by such event over and above the Common Shares issuable upon such
      conversion before giving effect to such adjustment and (B) paying to such
      holder any amount of cash in lieu of any fraction pursuant to paragraph
      (f) of this Section 6; provided, however, that the Company shall deliver
      to such holder a due bill or other appropriate instrument evidencing such
      holder’s right to receive such additional Common Shares and cash upon the
      occurrence of the event requiring such
  adjustment.

              


      

       

      
        	
                 
      

              	
                (l)

              	
                There
      shall be no adjustment of the Conversion Price in case of the issuance of
      any shares of beneficial interest of the Trust in a reorganization,
      acquisition or other similar transaction except as specifically set forth
      in this Section 6. If any action or transaction would require adjustment
      of the Conversion Price pursuant to more than one paragraph of this
      Section 6, only one adjustment shall be made and such adjustment shall be
      the amount of adjustment that has the highest absolute
    value.

              


      

       

      
        	
                 
      

              	
                (m)

              	
                If
      the Trust shall take any action affecting the Common Shares, other than
      actions described in this Section 6, that in the reasonable opinion of the
      Board of Trustees would materially and adversely affect the conversion
      rights of the holders of the Series C Preferred Shares, the Conversion
      Price for the Series C Preferred Shares shall be adjusted, to the extent
      permitted by law, in such manner, if any, and at such time, as the Board
      of Trustees, in its reasonable discretion, may determine to be equitable
      in the circumstances.

              


      

       

      
        	
                 
      

              	
                (n)

              	
                The
      Trust covenants that it will at all times reserve and keep available, free
      from preemptive rights, out of the aggregate of its authorized but
      unissued Common Shares, for the purpose of effecting conversion of the
      Series C Preferred Shares, the full number of Common Shares deliverable
      upon the conversion of all outstanding Series C Preferred Shares not
      theretofore converted. For purposes of this paragraph (n), the number of
      Common Shares that shall be deliverable upon the conversion of all
      outstanding Series C Preferred Shares shall be computed as if at the time
      of computation all such outstanding shares were held by a single
      holder.

              


      

       

      
        
          
          

        

        
          20

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (o)

              	
                The
      Trust covenants that any Common Shares issued upon conversion of the
      Series C Preferred Shares shall be validly issued, fully paid and (subject
      to customary qualification based upon the nature of a real estate
      investment trust) non-assessable. Before taking any action that would
      cause an adjustment reducing the Conversion Price below the then-par value
      of the Common Shares deliverable upon conversion of the Series C Preferred
      Shares, the Trust will take any action that, in the opinion of its
      counsel, may be necessary in order that the Trust may validly and legally
      issue fully paid and (subject to any customary qualification based upon
      the nature of a real estate investment trust) non-assessable Common Shares
      at such adjusted Conversion Price.

              


      

       

      
        	
                 
      

              	
                (p)

              	
                The
      Trust shall endeavor to list the Common Shares required to be delivered
      upon conversion of the Series C Preferred Shares, prior to such delivery,
      upon each national securities exchange, if any, upon which the outstanding
      Common Shares are listed at the time of such
  delivery.

              


      

       

      
        	
                 
      

              	
                (q)

              	
                The
      Trust will pay any and all documentary stamp or similar issue or transfer
      taxes payable in respect of the issue or delivery of Common Shares or
      other securities or property on conversion of the Series C Preferred
      Shares pursuant hereto; provided, however, that the Trust shall not be
      required to pay any tax that may be payable in respect of any transfer
      involved in the issue or delivery of Common Shares or other securities or
      property in a name other than that of the holder of the Series C Preferred
      Shares to be converted, and no such issue or delivery shall be made unless
      and until the Person requesting such issue or delivery has paid to the
      Trust the amount of any such tax or established, to the reasonable
      satisfaction of the Trust, that such tax has been
  paid.

              


      

       

      
        
          
          

        

        
          21

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (r)

              	
                At
      any time and from time to time after the Issue Date the Trust may give
      written notice (a “Conversion Notice”) to the holders of Series C
      Preferred Shares of its intent to effect a mandatory conversion of all
      outstanding Series C Preferred Shares.  Subject to provisions
      hereinafter set forth, the mandatory conversion shall be effective on the
      30th
      Trading Day (the “Company Conversion Date”) following the date of mailing
      of the Conversion Notice.  The mandatory conversion may only be
      effected if (i) the Current Market Price of the Common Shares for any 20
      consecutive Trading Day period beginning with the date of mailing of the
      Conversion Notice and ending on the 25th
      Trading Day following such Conversion Notice equals or exceeds 125% of the
      Conversion Price in effect on the Company Conversion Date, and (ii)
      either, (A) an effective registration statement is on file with the
      Securities and Exchange Commission covering the resale of the Common
      Shares issuable upon conversion of the Series C Preferred Shares on the
      Company Conversion Date or (B) the Common Shares issuable upon conversion
      of the Series C Preferred Shares may be sold free of restriction without
      any such registration on the Company Conversion Date, then all of the
      Series C Preferred Shares will convert into that number of the fully paid
      and nonassessable shares of Common Shares determined in accordance with
      the provisions of Section 6(b) above, without any action on the part of
      the holders of the Series C Preferred Shares.  The Company shall
      give written notice to the holders of Series C Preferred Shares within
      five business days after the Company Conversion Date.  From and
      after the Company Conversion Date, if the foregoing conditions are met,
      (i) the Series C Preferred Shares shall no longer be deemed to be
      outstanding, and (ii) all rights of the holders thereof as holders of
      Series C Preferred Shares of the Trust shall cease (except the rights to
      receive the Common Shares, upon surrender and endorsement of their
      certificates and to receive any dividends payable thereon), provided, however, that
      if the Company Conversion Date falls after a dividend payment record date
      but before the corresponding Dividend Payment Date, then each holder of
      Series C Preferred Shares at the close of business on such dividend
      payment record date shall be entitled to receive the dividend payable on
      such shares on the corresponding Dividend Payment Date notwithstanding the
      redemption of such shares before such Dividend Payment Date.  At
      the close of business on the Company Conversion Date, each holder of
      Series C Preferred Shares shall be deemed to be the record holder of the
      number of Common Shares into which such Series C Preferred Shares are to
      be converted, regardless of whether such holder has surrendered the
      certificates representing the Series C Preferred
  Shares.

              


      

       

      
        	
                Section
      7.

              	
                Shares To Be
      Retired.  All Series C Preferred Shares which shall have
      been issued and reacquired in any manner by the Trust shall be restored to
      the status of authorized but unissued shares of beneficial interest of the
      Trust, without designation as to class or
  series.

              


      

       

      
        	
                Section
      8.

              	
                Ranking.  Any
      class or series of shares of beneficial interest of the Trust shall be
      deemed to rank:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                senior
      to the Series C Preferred Shares, as to the payment of dividends and as to
      distribution of assets upon liquidation, dissolution or winding up, if the
      holders of such class or series shall be entitled to the receipt of
      dividends or of amounts distributable upon liquidation, dissolution or
      winding up, as the case may be, in preference or priority to the holders
      of Series C Preferred Shares (“Senior Shares”).  As of the Issue
      Date, the only Senior Shares are the Series B-1 Preferred
      Shares;

              


      

       

      
        	
                 
      

              	
                (b)

              	
                on
      a parity with the Series C Preferred Shares, as to the payment of
      dividends and as to distribution of assets upon liquidation, dissolution
      or winding up, whether or not the dividend rates, dividend payment dates
      or redemption or liquidation prices per share thereof shall be different
      from those of the Series C Preferred Shares, if the holders of such class
      or series and the Series C Preferred Shares shall be entitled to the
      receipt of dividends and of amounts distributable upon liquidation,
      dissolution or winding up in proportion to their respective amounts of
      accrued and unpaid dividends per share or liquidation preferences, without
      preference or priority one over the other (“Parity
    Shares”).

              


      

       

      
        
          
          

        

        
          22

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (c)

              	
                junior
      to the Series C Preferred Shares, as to the payment of dividends or as to
      the distribution of assets upon liquidation, dissolution or winding up, if
      such class or series shall be Junior Shares;
and

              


      

       

      
        	
                 
      

              	
                (d)

              	
                junior
      to the Series C Preferred Shares, as to the payment of dividends and as to
      the distribution of assets upon liquidation, dissolution or winding up, if
      such class or series shall be Fully Junior
  Shares.

              


      

       

      
        	
                Section
      9.

              	
                Voting.  (a)  If
      and whenever (i) following the commencement of the payment of dividends on
      the Common Shares, the Trust shall fail to declare and pay a quarterly
      dividend on the Series C Preferred Shares at the rate specified in Section
      3(a) for four consecutive Dividend Payment Periods, or (ii) the Trust
      shall default under its obligations under that certain Investor Rights
      Agreement, dated the Issue Date, by and among the Trust, and the Investors
      named therein, or (iii) if the Fair Market Value of the issued and
      outstanding Common Shares shall fall below $71,200,000, or (iv) the Trust
      shall fail to effect any redemption required under Section 5 above (any
      event described in clauses (i), (ii), (iii) or (iv) of the preceding
      sentence being referred to herein as a “Governance Default”), then the
      number of trustees then constituting the Board of Trustees shall be
      increased as hereinafter provided and the holders of Series C Preferred
      Shares voting as a class shall be entitled to elect trustees (the
      “Additional Trustees”) to fill the positions created by such increase in
      the Board of Trustees.  Any Additional Trustee proposed to be
      elected by the Series C Preferred Shares shall meet the requirements
      imposed by Section 303 of the New York Stock Exchange Listing Standards
      for independent directors.  The number of Trustees shall be
      increased by such number so that the Additional Trustees to be so elected
      by the holders of Series C Preferred Shares, shall be either (i) one, if
      Series B-1 Preferred Shares are outstanding and have the right to elect
      one or more Trustees, or (ii) two, if the Series B-1 Preferred Shares are
      not outstanding or do not have the right to elect a
      Trustee.  The Additional Trustees shall be elected at any annual
      meeting of shareholders or special meeting held in place thereof, or at a
      special meeting of the holders of the Series C Preferred Shares and
      Additional Series C Preferred Shares called as hereinafter
      provided.  Whenever the applicable Governance Default shall
      cease to exist, then the right of the holders of the Series C Preferred
      Shares to elect such additional trustees shall cease (but subject always
      to the same provision for the vesting of such voting rights in the case of
      any similar future Governance Default), and the terms of office of all
      persons elected as trustees by the holders of the Series C Preferred
      Shares shall forthwith terminate and the number of the Board of Trustees
      shall be reduced accordingly.  At any time after the Issue Date,
      the Secretary of the Trust may, and upon the written request of any holder
      of Series C Preferred Shares (addressed to the Secretary at the principal
      office of the Trust) shall, call a special meeting of the holders of the
      Series C Preferred Shares for the election of the trustees to be elected
      by them as herein under paragraph 9(a) provided, such
      call to be made by notice similar to that provided in the By-Laws of the
      Trust for a special meeting of the shareholders or as required by law. If
      any such special meeting required to be called as above provided shall not
      be called by the Secretary within 20 days after receipt of any such
      request, then any holder of Series C Preferred Shares may call such
      meeting, upon the notice above provided, and for that purpose shall have
      access to the records of the Trust. The trustees elected at any such
      special meeting shall hold office until the next annual meeting of the
      shareholders or special meeting held in lieu thereof if such office shall
      not have previously terminated as above provided.  If any
      vacancy shall occur among the trustees elected by the holders of the
      Series C Preferred Shares, a successor shall be elected by the Board of
      Trustees, upon the nomination of any then-remaining trustees elected by
      the holders of the Series C Preferred Shares or the successors of such
      remaining trustees, to serve until the next annual meeting of the
      shareholders or special meeting held in place thereof if such office shall
      not have previously terminated as provided above.  If there are
      no such remaining trustees, a special meeting shall be held for such
      purpose.

              


      

       

      
        
          
          

        

        
          23

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (b)

              	
                So
      long as any Series C Preferred Shares are outstanding, in addition to any
      other vote or consent of shareholders required by law, by the Trust’s
      Amended Declaration of Trust, as amended and supplemented (the
      “Declaration of Trust”), or by the Trust’s By-Laws, as amended and
      supplemented (the “By-Laws”), the affirmative vote of at least 66 2/3% of
      the votes entitled to be cast by the holders of the Series C Preferred
      Shares, at the time outstanding, acting as a single class regardless of
      series, given in person or by proxy, either in writing without a meeting
      or by vote at any meeting called for the purpose, shall be necessary for
      effecting or validating (including by way of
  merger):

              


      

       

      
        	
                 
      

              	
                (i)

              	
                Any
      amendment, alteration or repeal of any of the provisions of the
      Declaration of Trust, By-Laws or this Certificate of Designations that
      adversely affects the voting powers, rights or preferences of the holders
      of the Series C Preferred Shares; provided, however, that the amendment of
      the provisions of the Declaration of Trust so as to authorize or create or
      to increase the authorized amount of any Fully Junior Shares, or Junior
      Shares that are not senior in any respect to or on a parity with the
      Series C Preferred Shares shall not be deemed to adversely affect the
      voting powers, rights or preferences of the holders of Series C Preferred
      Shares otherwise entitled to vote in accordance
  herewith;

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                A
      share exchange that affects the Series C Preferred Shares, a consolidation
      with or merger of the Trust into another entity, or a consolidation with
      or merger of another entity into the Trust, unless in each such case each
      Series C Preferred Share (i) shall remain outstanding without any adverse
      change to its terms and rights or (ii) shall be converted into or
      exchanged for convertible preferred shares of the surviving entity having
      preferences, conversion or other rights, voting powers, restrictions,
      limitations as to dividends, qualifications and terms or conditions of
      redemption thereof identical to that of a Series C Preferred Share (except
      for changes that do not adversely affect the holders of the Series C
      Preferred Shares);

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                The
      authorization, reclassification or creation of, or the increase in the
      authorized amount of, any shares of any class or any security convertible
      into shares of any class ranking prior to the Series C Preferred Shares in
      the distribution of assets on any liquidation, dissolution or winding up
      of the Trust or in the payment of dividends; provided, however, that
      no such vote of the holders of Series C Preferred Shares shall be required
      if, at or prior to the time when such amendment, alteration or repeal is
      to take effect, or when the issuance of any such prior shares or
      convertible security is to be made, as the case may be, provision is made
      (to the extent otherwise permitted hereunder) for the redemption of all
      Series C Preferred Shares at the time
  outstanding;

              


      

       

      
        
          
          

        

        
          24

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                (iv)

              	
                The
      authorization, reclassification or creation of, or the increase in the
      authorized amount of, any shares of any class or any security convertible
      into shares of any class ranking on parity with the Series C Preferred
      Shares in the distribution of assets on any liquidation, dissolution or
      winding up of the Trust or in the payment of dividends provided that no
      such vote of the holders of Series C Preferred Shares shall be required if
      (i) the then holders of the Series C Preferred Shares are entitled to
      participate in any such issuance of Parity Shares in an amount sufficient
      to maintain such holders percentage ownership in the Company on a fully
      diluted basis after giving effect to the issuance of such Parity Shares,
      and (ii) the aggregate liquidation value of the then outstanding Senior
      Shares, Series C Preferred Shares and Parity Shares does not exceed the
      product of (x) 75% of the average Current Market Price of the Common
      Shares over the preceding 10 trading days and (y) the then outstanding
      Common Shares;

              


      

       

      
        	
                 
      

              	
                (v)

              	
                Any
      action that would have the effect of substantially altering the business
      of the Trust as such business is conducted as of the Issue Date;
      or

              


      

       

      
        	
                 
      

              	
                (vi)

              	
                Any
      redemption or purchase of Common Shares, Parity Shares, Junior Shares or
      Fully Junior Shares, other than (i) the purchase of Parity Shares ratably
      with the Series C Preferred Shares in proportion to the respective
      aggregate liquidation values of such Parity Shares and the Series C
      Preferred Shares, (ii) the purchase of Series C Preferred Shares;
      provided, however, that any purchase of Series C Preferred Shares shall be
      made pursuant to an offer made to all holders of such securities if the
      purchase is made at a time when the resale of the Common Shares issuable
      on conversion of the Series C Preferred Shares is not subject to an
      effective Registration Statement under the Securities Act of 1933 or
      exempt from such registration, or (iii) purchases of Common Shares in any
      Dividend Period at an aggregate purchase price, which when added to the
      dividends paid on the Common Shares for such Dividend Period, does not
      exceed the sum of the amount paid to purchase Common Shares and the amount
      paid as dividends on the Common Shares for the immediately preceding
      Dividend Period.

              


      

       

      
        	
                 
      

              	
                (vii)

              	
                For
      purposes of the foregoing provisions of this Section 9, each Series C
      Preferred Share shall have one (1) vote per share.  Except as
      otherwise required by applicable law or as set forth herein, the Series C
      Preferred Shares shall not have any relative, participating, optional or
      other special voting rights and powers other than as set forth herein, and
      the consent of the holders thereof shall not be required for the taking of
      any Trust action.

              


      

       

      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

       

      In the
event of a Change of Control as defined under Section 5(b) above or in the event
of a vote of Common Shares on a matter that relates to the potential dilution of
the Series C Preferred Shares, or in the event that the Trust proposes to issue,
Common Shares, and a vote of the holders of Common Shares is required under
applicable law to effect such issuance, the Series C Preferred Shares shall have
the right to vote with the Common Shares as a class on all matters on which a
vote of Common Shares is taken, with each holder of Series C Preferred Shares
entitled to one vote for every Common Share issuable upon conversion of such
holder’s Series C Preferred Shares pursuant to Section 6 hereunder.

       

      
        	
                Section
      10.

              	
                Limitations on
      Ownership and Transfer.

              


      

       

      (a)           Definitions.                      For
purposes of this Section 10, the following terms shall have the meanings set
forth below:

       

      “Beneficial Ownership,” when used with
respect to ownership of shares of Equity Stock by any Person, shall mean all
shares of Equity Stock which are (i) directly owned by such Person, or (ii)
indirectly owned by such Person taking into account the constructive ownership
rules of Section 544 of the Code, as modified by Section 856(h) of the Code
(except as expressly provided otherwise), provided that (x) in determining the
number of shares Beneficially Owned by a Person or group, no share shall be
counted more than once although applicable to both clauses (i) and (ii) of this
definition.

       

      “Beneficiary” shall mean, with respect
to a trust formed pursuant to Section 10(e)(4), one or more organizations
described in each of Section 170(b)(1)(A) (other than clauses (vii) and (viii)
thereof) and Section 170(c)(2) of the Code that are named as the beneficiary or
beneficiaries of such trust, in accordance with the provisions of Section
10(e)(4).

       

      “Closely Held Limit” shall have the
meaning ascribed to such term in Section 10(b)(1)(A).

       

      “Code” shall mean the Internal Revenue
Code of 1986, as amended.

       

      “Constructive Ownership” shall mean
ownership of shares of Equity Stock by a Person who is or would be treated as a
direct or indirect owner of such shares of Equity Stock through the application
of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms “Constructive Owner,” “constructively owns” and “constructively owned”
shall have correlative meanings.

       

      “Equity Stock” shall mean the Common
Shares and all outstanding preferred shares of any series, of the
Trust.

       

      “Non-Transfer Event” shall mean an
event other than a purported Transfer that would cause an increase in the
percentage of any Person’s Beneficial Ownership of the outstanding shares of
Equity Stock.

       

      
        
          
          

        

        
          26

          
            

          

        

        
          
          

        

      

       

      “Permitted Transferee” shall mean any
Person designated as a Permitted Transferee in accordance with the provisions of
Section 10(e)(8).

       

      “Person” shall mean any individual,
firm, partnership, corporation, limited liability company or other
entity.

       

      “Prohibited Owner” shall mean, with
respect to any purported Transfer or Non-Transfer Event, any Person who is
prevented from becoming or remaining the owner of record title to shares of
Equity Stock by the provisions of Section 10(e)(1).

       

      “REIT” shall mean a real estate
investment trust under Sections 856 through 860 of the Code.

       

      “Restriction Termination Date” shall
mean the first day on which the Board of Trustees determines that it is no
longer in the best interests of the Trust to attempt to, or continue to, qualify
under the Code as a REIT.

       

      “Taxable REIT Subsidiary” shall mean a
corporation in which the Trust owns stock as to which an election under Section
856(l) of the Code has been validly made (and not revoked).

       

      “Transfer” (as a noun) shall mean any
sale, transfer, gift, assignment, devise or other disposition of shares (or of
Beneficial Ownership of shares) of Equity Stock, whether voluntary or
involuntary, whether of record, constructively or beneficially and whether by
operation of law or otherwise.  “Transfer” (as a verb) shall have the
correlative meaning.

       

      (b)           Restriction On Ownership And
Transfer.

       

      (1)           Until
the Restriction Termination Date:

       

      (A)           No
Person who at any time holds any Series C Preferred Shares shall Beneficially
Own shares of Equity Stock to the extent that such ownership by such Person, if
effective, would result in the Trust being “closely held” within the meaning of
Section 856(h) of the Code or that the Board of Trustees reasonably determines
would otherwise materially jeopardize the Trust’s status as a REIT for Federal
income tax purposes (the “Closely Held Limit”); and

       

      (B)           Any
purported Transfer (whether or not the result of a transaction entered into
through the facilities of the NYSE or any other national securities exchange or
the NASDAQ or any other automated quotation system) that, if effective, would
result in any Person Beneficially Owning shares of Equity Stock in excess of the
Closely Held Limit shall be void AB INITIO as to the Transfer of that number of
shares of Equity Stock which would be otherwise Beneficially Owned by such
Person in excess of the Closely Held Limit, and the intended transferee Person
shall acquire no rights in such shares of Equity Stock.

       

      
        
          
          

        

        
          27

          
            

          

        

        
          
          

        

      

       

      (2)           Until
the Restriction Termination Date, any purported Transfer (whether or not the
result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or the NASDAQ or any other automated
quotation system) of shares of Equity Stock that, if effective, would cause the
Trust to Constructively Own 10% or more of the ownership interests in a tenant
of the real property of the Trust or any direct or indirect subsidiary (whether
a Trust, partnership, limited liability company or other entity) of the Trust (a
“Subsidiary”) (other than a Taxable REIT Subsidiary, if the requirements of
856(d)(8) are satisfied) within the meaning of Section 856(d)(2)(B) of the Code,
shall be void AB INITIO as to the Transfer of that number of shares of Equity
Stock that would cause the Trust to Constructively Own 10% or more of the
ownership interests in a tenant of the real property of the Trust or a
Subsidiary (other than a Taxable REIT Subsidiary) within the meaning of Section
856(d)(2)(B) of the Code, and the intended transferee shall acquire no rights in
such shares of Equity Stock.

       

      (3)           Until
the Restriction Termination Date, any purported Transfer (whether or not the
result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or the NASDAQ or any other automated
quotation system) that, if effective, would result in shares of Equity Stock
being beneficially owned by fewer than 100 persons within the meaning of Section
856(a)(5) of the Code shall be void AB INITIO and the intended transferee shall
acquire no rights in such shares of Equity Stock.

       

      (4)           Until
the Restriction Termination Date, any purported Transfer (whether or not the
result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or the NASDAQ or any other automated
quotation system) that, if effective, would result in the Trust being a “pension
held REIT” within the meaning of Section 856(h)(3)(D) of the Code shall be void
AB INITIO and the intended transferee shall acquire no rights in such shares of
Equity Stock.

       

      (5)           Until
the Restriction Termination Date, any purported Transfer (whether or not the
result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or the NASDAQ or any other automated
quotation system) that, if effective, would result in the Trust failing to be a
“domestically controlled REIT” within the meaning of Section 897(h)(4)(B) of the
Code shall be void AB INITIO and the intended transferee shall acquire no rights
in such shares of Equity Stock.

       

      (6)           Until
the Restriction Termination Date, any purported Transfer (whether or not the
result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or the NASDAQ or any other automated
quotation system) that, if effective, would cause the Trust to fail to qualify
as a REIT shall be void AB INITIO and the intended transferee shall acquire no
rights in such shares of Equity Stock.

       

      (c)           Owners
Required To Provide Information.  Until the Restriction Termination
Date:

       

      (1)           Every
Beneficial Owner of more than 5%, or such lower percentages as are then required
pursuant to regulations under the Code, of the outstanding shares of any class
or series of Equity Stock of the Trust shall, within 30 days after January 1 of
each year, provide to the Trust a written statement or affidavit stating the
name and address of such Beneficial Owner, the number of shares of Equity Stock
Beneficially Owned by such Beneficial Owner, and a description of how such
shares are held. Each such Beneficial Owner shall provide to the Trust such
additional information as the Trust may reasonably request in order to determine
the effect, if any, of such Beneficial Ownership on the Trust’s status as a REIT
and to ensure compliance with Section 10(b).

       

      
        
          
          

        

        
          28

          
            

          

        

        
          
          

        

      

       

      (2)           Each
Person who is a Beneficial Owner of shares of Equity Stock and each Person
(including the stockholder of record) who is holding shares of Equity Stock for
a Beneficial Owner shall provide to the Trust a written statement or affidavit
stating such information as the Trust may reasonably request in order to
determine the Trust’s status as a REIT and to ensure compliance with Section
10(b).

       

      (d)           NYSE
Transactions.   Notwithstanding any provision contained
herein to the contrary, nothing in this Certificate shall preclude the
settlement of any transaction entered into through the facilities of the NYSE or
any other national securities exchange or the NASDAQ or any other automated
quotation system.  In no event shall the existence or application of
the preceding sentence have the effect of deterring or preventing the conversion
of Equity Stock into Excess Stock as contemplated herein.

       

      (e)           Excess
Stock.

       

      (1)           Conversion Into Excess
Stock.

       

      (A)           If,
notwithstanding the other provisions contained in this Section 10, prior to the
Restriction Termination Date there is a purported Transfer or Non-Transfer Event
that, if effective, would now or in the future (i) violate the Closely Held
Limit, (ii) cause the Trust to Constructively Own 10% or more of the ownership
interest in a tenant of the Trust’s or a Subsidiary’s real property within the
meaning of Section 856(d)(2)(B) of the Code, (iii) result in the shares of
Equity Stock being beneficially owned by fewer than 100 persons within the
meaning of Section 856(a)(5) of the Code, (iv) cause the Trust to be a “pension
held REIT” within the meaning of Section 856(h)(3)(D) of the Code, (v) cause the
Trust to fail to be a “domestically controlled REIT” within the meaning of
Section 856(h)(4)(B) of the Code, or (vi) cause the Trust to fail to qualify as
a REIT, then (x) the purported transferee shall be deemed to be a Prohibited
Owner and shall acquire no right or interest (or, in the case of a Non-Transfer
Event, the Person holding record title of the shares of Equity Stock with
respect to which such Non-Transfer Event occurred shall cease to own any right
or interest) in such number of shares of Equity Stock, the ownership of which by
such purported transferee or record holder would (A) violate the Closely Held
Limit, (B) cause the Trust to Constructively Own 10% or more of the ownership
interests in a tenant of the Trust’s or a Subsidiary’s real property within the
meaning of Section 856(d)(2)(B) of the Code, (C) result in the shares of Equity
Stock being beneficially owned by fewer than 100 persons within the meaning of
Section 856(a)(5) of the Code, (D) result in the Trust being a “pension held
REIT” within the meaning of Section 856(h)(3)(D) of the Code, (E) cause the
Trust to fail to be a “domestically controlled REIT” within the meaning of
Section 897(h)(4)(B) of the Code or (F) cause the Trust to fail to qualify as a
REIT, (y) such number of shares of Equity Stock (rounded up to the nearest whole
share) shall be automatically converted into an equal number of shares of Excess
Stock and transferred to a trust in accordance with Section 10(e) and (z) the
Prohibited Owner shall submit such number of shares of Equity Stock to the
Trust, accompanied by all requisite and duly executed assignments of transfer
thereof, for registration in the name of the trustee of the trust as described
in Section 10(e)(4).  Such conversion into Excess Stock and transfer
to a trust shall be effective as of the close of trading on the Trading Day
prior to the date of the purported Transfer or Non-Transfer Event, as the case
may be, even though the certificates representing the shares of Equity Stock so
converted may be submitted to the Trust at a later date.

       

      
        
          
          

        

        
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      (B)           Upon
the occurrence of such a conversion of shares of Equity Stock into an equal
number of shares of Excess Stock, such shares of Equity Stock shall be
automatically retired and canceled, without any action required by the Board of
Trustees of the Trust, and shall thereupon be restored to the status of
authorized but unissued shares of the particular class or series of Equity Stock
from which such Excess Stock was converted and may be reissued by the Trust as
that particular class or series of Equity Stock, but only as provided in Section
10(e)(8).

       

      (2)           Remedies For
Breach.  If the Trust, or its designees, shall at any time
reasonably determine that a Transfer has taken place in violation of Section
10(b) or that a Person intends to acquire or has attempted to acquire Beneficial
Ownership or Constructive Ownership of any shares of Equity Stock in violation
of Section 10(b), the Trust shall take such action as it deems advisable to
refuse to give effect to or to prevent such Transfer or acquisition, including,
but not limited to, refusing to give effect to such Transfer on the stock
transfer books of the Trust or instituting proceedings to enjoin such Transfer
or acquisition, but the failure to take any such action shall not affect the
automatic conversion of shares of Equity Stock into Excess Stock and their
transfer to a trust in accordance with Section 10(e)

       

      (3)           Notice of Restricted
Transfer.  Any Person who acquires or attempts to acquire
shares of Equity Stock in violation of Section 10(b), or any Person who owns
shares of Equity Stock that were converted into shares of Excess Stock and
transferred to a trust pursuant to Sections 10(e), shall, if such Person knows
or reasonably could be expected to know the foregoing, immediately give written
notice to the Trust of such event.  Such Person (whether or not
required to notify the Trust pursuant to the preceding sentence) shall provide
to the Trust such other information as the Trust may reasonably request in order
to determine the effect, if any, of such Transfer or Non-Transfer Event, as the
case may be, on the Trust’s status as a REIT.

       

      (4)           Ownership In
Trust.  Upon any purported Transfer or Non-Transfer Event that
results in Excess Stock pursuant to Section 10(e), (i) the Trust shall create,
or cause to be created, a trust, and shall designate a trustee and name a
Beneficiary thereof and (ii) such Excess Stock shall be automatically
transferred to such trust to be held for the exclusive benefit of the
Beneficiary.  Any conversion of shares of Equity Stock into shares of
Excess Stock and transfer to a trust shall be effective as of the close of
trading on the Trading Day prior to the date of the purported Transfer or
Non-Transfer Event that results in the conversion. Shares of Excess Stock so
held in trust shall remain issued and outstanding shares of stock of the
Trust.

       

      
        
          
          

        

        
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      (5)           Dividend
Rights.  Each share of Excess Stock shall be entitled to the
same dividends and distributions, if any, (as to both timing and amount) as may
be declared by the Board of Trustees with respect to each share of Equity Stock
which was converted into such Excess Stock.  The trustee, as record
holder of the shares of Excess Stock, shall be entitled to receive all dividends
and distributions and shall hold all such dividends or distributions in trust
for the benefit of the Beneficiary.  The Prohibited Owner with respect
to such shares of Excess Stock shall repay to the trust the amount of any
dividends or distributions received by it (i) that are attributable to any
shares of Equity Stock that have been converted into shares of Excess Stock and
(ii) the record date of which was on or after the date that such shares were
converted into shares of Excess Stock. The Trust shall take all measures that it
determines reasonably necessary to recover the amount of any such dividend or
distribution paid to a Prohibited Owner, including, if necessary, withholding
any portion of future dividends or distributions payable on shares of Equity
Stock Beneficially Owned by the Person who, but for the provisions of this
Section 10, would Constructively Own or Beneficially Own the shares of Equity
Stock that were converted into shares of Excess Stock; and, as soon as
reasonably practicable following the Trust’s receipt or withholding thereof,
shall pay over to the trust for the benefit of the Beneficiary the dividends so
received or withheld, as the case may be.

       

      (6)           Rights Upon
Liquidation.  In the event of any voluntary or involuntary
liquidation of, or winding up of, or any distribution of the assets of, the
Trust, each holder of shares of Excess Stock shall be entitled to receive,
ratably with each other holder of shares of share of the same class and series
of Equity Stock which was converted into such Excess Stock, that portion of the
assets of the Trust that is available for distribution to the holders of the
same class and series of Equity Stock which was converted into such Excess
Stock.  The trust shall distribute to the Prohibited Owner the amounts
received upon such liquidation, dissolution, or winding up, or distribution;
provided, however, that the Prohibited Owner shall not be entitled to receive
amounts in excess of, in the case of a purported Transfer in which the
Prohibited Owner gave value for shares of Equity Stock and which Transfer
resulted in the conversion of the shares into shares of Excess Stock, the
product of (x) the price per share, if any, such Prohibited Owner paid for the
shares of Equity Stock and (y) the number of shares of Equity Stock which were
so converted into Excess Stock, and, in the case of a Non-Transfer Event or
purported Transfer in which the Prohibited Owner did not give value for such
shares (e.g., if the shares were received through a gift or devise) and which
Non-Transfer Event or purported Transfer, as the case may be, resulted in the
conversion of the shares into shares of Excess Stock, the product of (x) the
price per share equal to the Current Market Price on the date of such
Non-Transfer Event or purported Transfer and (y) the number of shares of Equity
Stock which were so converted into Excess Stock.  Any remaining amount
in such trust shall be distributed to the Beneficiary.

       

      
        
          
          

        

        
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      (7)           Voting
Rights.  Each share of Excess Stock shall entitle the holder to
no voting rights other than those voting rights which accompany a class of
capital stock under Ohio law.  The trustee, as record holder of the
Excess Stock, shall be entitled to vote all shares of Excess
Stock.  Any vote by a Prohibited Owner as a purported holder of shares
of Equity Stock prior to the discovery by the Trust that such shares of Equity
Stock have been converted into shares of Excess Stock shall, subject to
applicable law, be rescinded and shall be void AB INITIO with respect to such
shares of Excess Stock.

       

      (8)           Designation Of Permitted
Transferee.

       

      (A)           As
soon as practicable after the trustee acquires Excess Stock, but in an orderly
fashion so as not to materially adversely affect the trading price of the same
class and series of Equity Stock from which such Equity Stock was converted, the
trustee shall designate one or more Persons as Permitted Transferees and sell to
such Permitted Transferees any shares of Excess Stock held by the trustee;
provided, however, that (i) any Permitted Transferee so designated purchases for
valuable consideration (whether in a public or private sale) the shares of
Excess Stock and (ii) any Permitted Transferee so designated may acquire such
shares of Excess Stock without violating any of the restrictions set forth in
Section 10(b) and without such acquisition resulting in the conversion of the
shares of Equity Stock so acquired into shares of Excess Stock and the transfer
of such shares to a trust pursuant to Sections 10(e)(1) and (4).  The
trustee shall have the exclusive and absolute right to designate Permitted
Transferees of any and all shares of Excess Stock. Prior to any transfer by the
trustee of shares of Excess Stock to a Permitted Transferee, the trustee shall
give not less than five Trading Days prior written notice to the Trust of such
intended transfer and the Trust must have waived in writing its purchase rights
under Section 10(e)(10).

       

      (B)           Upon
the designation by the trustee of a Permitted Transferee in accordance with the
provisions of this Section 10(e)(8), the Trustee shall cause to be transferred
to the Permitted Transferee shares of Excess Stock acquired by the trustee
pursuant to Section 10(e)(4).  Upon such transfer of shares of Excess
Stock to the Permitted Transferee, such shares of Excess Stock shall be
automatically converted into an equal number of shares of Equity Stock of the
same class and series from which such Excess Stock was converted. Upon the
occurrence of such a conversion of shares of Excess Stock into an equal number
of shares of Equity Stock, such shares of Excess Stock shall be automatically
retired and canceled, without any action required by the Board of Trustees of
the Trust, and shall thereupon be restored to the status of authorized but
unissued shares of Excess Stock and may be reissued by the Trust as Excess
Stock.  The trustee shall (i) cause to be recorded on the stock
transfer books of the Trust that the Permitted Transferee is the holder of
record of such number of shares of Equity Stock, and (ii) distribute to the
Beneficiary any and all amounts held with respect to such shares of Excess Stock
after making payment to the Prohibited Owner pursuant to Section
10(e)(9).

       

      
        
          
          

        

        
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      (C)           If
the Transfer of shares of Excess Stock to a purported Permitted Transferee would
or does violate any of the transfer restrictions set forth in Section 10(b),
such Transfer shall be void AB INITIO as to that number of shares of Excess
Stock that cause the violation of any such restriction when such shares are
converted into shares of Equity Stock (as described in clause (B) above) and the
purported Permitted Transferee shall be deemed to be a Prohibited Owner and
shall acquire no rights in such shares of Excess Stock or Equity Stock. Such
shares of Equity Stock shall be automatically re-converted into Excess Stock and
transferred to the trust from which they were originally Transferred. Such
conversion and transfer to the trust shall be effective as of the close of
trading on the Trading Day prior to the date of the Transfer to the purported
Permitted Transferee and the provisions of this Article IV shall apply to such
shares, including, without limitation, the provisions of Sections 10(e)(8)
through 10(e)(10) with respect to any future Transfer of such shares by the
trust.

       

      (9)           Compensation to Record
Holder of Shares of Equity Stock That Are Converted Into Shares of Excess
Stock.  Any Prohibited Owner shall be entitled (following
acquisition of the shares of Excess Stock and subsequent designation of and sale
of Excess Stock to a Permitted Transferee in accordance with Section 10(e)(8) or
following the acceptance of the offer to purchase such shares in accordance with
Section 10(e)(10) to receive from the trustee following the sale or other
disposition of such shares of Excess Stock the lesser of (i) (a) in the case of
a purported Transfer in which the Prohibited Owner gave value for shares of
Equity Stock and which Transfer resulted in the conversion of such shares into
shares of Excess Stock, the product of (x) the price per share, if any, such
Prohibited Owner paid for the shares of Equity Stock and (y) the number of
shares of Equity Stock which were so converted into Excess Stock and (b) in the
case of a Non-Transfer Event or purported Transfer in which the Prohibited Owner
did not give value for such shares (e.g., if the shares were received through a
gift or devise) and which Non-Transfer Event or purported Transfer, as the case
may be, resulted in the conversion of such shares into shares of Excess Stock,
the product of (x) the price per share equal to the Current Market Price on the
date of such Non-Transfer Event or purported Transfer and (y) the number of
shares of Equity Stock which were so converted into Excess Stock or (ii) the
proceeds received by the trustee from the sale or other disposition of such
shares of Excess Stock in accordance with Section 10(e)(8) or Section
10(e)(10).  Any amounts received by the trustee in respect of such
shares of Excess Stock and in excess of such amounts to be paid to the
Prohibited Owner pursuant to this Section 10(e)(9) shall be distributed to the
Beneficiary in accordance with the provisions of Section
10(e)(8).  The trustee and the trust shall have no liability for, and
each Beneficiary and Prohibited Owner shall be deemed to have irrevocably waived
any and all claims that it may have against the trustee and the trust arising
out of the disposition of shares of Excess Stock, except for claims arising out
of the gross negligence or willful misconduct of, or any failure to make
payments in accordance with this Section 10(e) by such trustee.

       

      (10)           Purchase Right In Excess
Stock.  Shares of Excess Stock shall be deemed to have been
offered for sale to the Trust or its designee, at a price per share equal to the
lesser of (i) the price per share in the transaction that created such shares
of  Excess Stock (or, in the case of a Non-Transfer Event or Transfer
in which the Prohibited Owner did not give value for the shares (e.g., if the
shares were received through a gift or devise), the Current Market Price on the
date of such Non-Transfer Event or Transfer in which the Prohibited Owner did
not give value for the shares) or (ii) the Current Market Price on the date the
Trust, or its designee, accepts such offer.  The Trust shall have the
right to accept such offer for a period of 90 days following the later of (a)
the date of the Non-Transfer Event or purported Transfer which results in such
shares of Excess Stock or (b) the date the Board of Trustees first determined
that a Transfer or Non-Transfer Event resulting in shares of Excess Stock has
occurred, if the Trust does not receive a notice of such Transfer or
Non-Transfer Event pursuant to Section 10(e)(3).

       

      
        
          
          

        

        
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      (11)           Remedies Not
Limited.  Except as set forth in Section 10(d), nothing
contained in this Section 10 shall limit the authority of the Trust to take such
other action as it deems necessary or advisable to protect the Trust and the
interests of its stockholders by preservation of the Trust’s status as a REIT
and to ensure compliance with the Ownership Limit.

       

      Section
11                      Rights
Offerings.  In the event that the Trust shall issue after the
Issue Date rights, options or warrants to all holders of Common Shares entitling
them to subscribe for or purchase Common Shares (a “Rights Offering”), the
holders of the Series C Preferred Shares shall have the right to participate in
such Rights Offering as if they had converted their Series C Preferred Shares
into Common Shares on the record date for such Rights Offering.

       

      Section
12.                      Record
Holders.  The Trust and the Transfer Agent may deem and treat
the record holder of any Series C Preferred Shares as the true and lawful owner
thereof for all purposes, and neither the Trust nor the Transfer Agent shall be
affected by any notice to the contrary.

       

      Section
13.                      Sinking Fund. The
Series C Preferred Shares shall not be entitled to the benefits of any
retirement or sinking fund.

       

      Section
14.                      Exclusivity.  Notwithstanding
any provision of the Declaration of Trust to the contrary, the holders of the
Series C Preferred Shares shall have no voting rights, and shall not be entitled
to receive any dividends or distributions on account of their shares, except, in
each case, to the extent expressly set forth herein or as otherwise required by
applicable law.

       

      
        
          
          

        

        
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      IN
WITNESS WHEREOF, this Certificate of Designations has been duly executed by the
undersigned this 1st day
of November, 2009.

       

      


       

      WINTHROP
REALTY TRUST

       

       

      By:                                                                

      Michael L. Ashner

      Chairman and Chief Executive
Officer

       

      
        
          
          

        

        
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