**EXHIBIT 3.3**
**SECOND ARTICLES OF AMENDMENT AND RESTATEMENT**
**OF**
**LUMINENT MORTGAGE CAPITAL, INC.**
     LUMINENT CAPITAL MORTGAGE, INC., a Maryland corporation (the“Corporation”), having its principal office in the State of Maryland, c/o TheCorporation Trust Incorporated, 300 E. Lombard Street, Baltimore, Maryland,21202, hereby certifies to the State Department of Assessments and Taxation ofMaryland that:
     FIRST: The Corporation desires to, and does hereby, amend and restate itscharter (this “Charter”) as currently in effect and as hereinafter amended.
     SECOND: The following provisions are all the provisions of this Chartercurrently in effect and as hereinafter amended and restated:
**ARTICLE I**
**NAME**
     The name of the Corporation is:
**Luminent Mortgage Capital, Inc.**
**ARTICLE II**
**PURPOSES**
     The purpose for which the Corporation is formed is to engage in any lawfulbusiness or other activity (including, without limitation or obligation,engaging in business as a REIT) for which corporations may be organized underthe general laws of the State of Maryland as now or hereafter in force. Forpurposes of this Charter, “REIT” means a real estate investment trust underSections 856 through 860 of the Internal Revenue Code of 1986, as amended, orany successor statute (the “Code”).
**ARTICLE III**
**PRINCIPAL OFFICE IN MARYLAND**
     The address of the principal office of the Corporation in Maryland is c/oThe Corporation Trust Incorporated, 300 East Lombard Street, Baltimore,Maryland 21202.
 

 

**ARTICLE IV**
**RESIDENT AGENT**
     The name of the resident agent of the Corporation in Maryland is TheCorporation Trust Incorporated, whose address is 300 East Lombard Street,Baltimore, Maryland 21202.
     The resident agent is a Maryland corporation.
**ARTICLE V**
**STOCK**
     5.1 Authorized Shares of Capital Stock.
          (a) Authorized Shares. The total number of shares of stock of all classesthat the Corporation has authority to issue is One Hundred Ten Million(110,000,000) shares of stock, consisting of: (i) One Hundred Million(100,000,000) shares of Common Stock, each having a par value of one-tenth ofone cent ($0.001) (“Common Stock”); and (ii) Ten Million (10,000,000) shares ofPreferred Stock, each having a par value of one-tenth of one cent ($0.001)(“Preferred Stock”), which may be issued in one or more classes or series asdescribed in Section 5.6 hereof. The Common Stock and each class or series ofthe Preferred Stock shall each constitute a separate class of stock of theCorporation.
     The Board of Directors of the Corporation (the “Board of Directors”) mayclassify and reclassify any unissued shares of Capital Stock (as defined below)in accordance with Section 5.7 hereof.
          (b) Terminology and Aggregate Par Value. The Common Stock and PreferredStock are collectively referred to herein as “Capital Stock.” The aggregatepar value of all the Corporation’s authorized Capital Stock having par value is$110,000.00.
     5.2 Restrictions on Transfer and Ownership of Capital Stock.
     Subsequent to the Initial Date (as defined below) and until theRestriction Termination Date (as defined below), all Capital Stock of theCorporation shall be subject to the following restrictions and limitations:
          (a) Definitions. For purposes of this Article V and the interpretation ofthe stock legends set forth herein, the following terms shall have thefollowing meanings:
          “Acquire” shall mean the acquisition of Beneficial Ownership orConstructive Ownership of Capital Stock, whether by a Transfer, Non-TransferEvent or by any other means, including, without limitation, acquisitionpursuant to the exercise of the Acquisition Rights or any other option,warrant, pledge or other security interest or similar right to acquire CapitalStock, but shall not include the acquisition of any such rights unless, as aresult, the acquiror would be considered a Beneficial Owner or ConstructiveOwner, each as defined below.
 

 

          “Acquisition Rights” shall mean rights to Acquire Capital Stock pursuantto: (i) the exercise of any option or warrant issued by the Corporation; or(ii) any pledge of Capital Stock.
          “Beneficial Ownership” shall mean ownership of Capital Stock by a Personwho would be treated as an owner of Capital Stock either directly orindirectly, including directly or indirectly under Section 542(a)(2) of theCode, taking into account, for this purpose, constructive ownership determinedunder Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code(except where expressly provided otherwise). The terms “Beneficial Owner,”“Beneficially Owns” and “Beneficially Owned” shall have the correlativemeanings.
          “Business Day” shall mean any day, other than a Saturday or Sunday, thatis neither a legal holiday nor a day on which banking institutions in New YorkCity are authorized or required by law, regulation or executive order to close.
          “Charitable Beneficiary” shall mean, with respect to any Trust, one ormore organizations described in each of Section 170(b)(1)(A) (other thanclauses (vii) or (viii) thereof) and Section 170(c)(2) of the Code that arenamed by the Corporation as the beneficiary or beneficiaries of such Trust, inaccordance with the provisions of Section 5.5(a) hereof.
          “Code” shall mean the Internal Revenue Code of 1986, as amended and ineffect from time to time, or any successor statute thereto, as interpreted bythe applicable regulations thereunder. Any reference herein to a specificsection or sections of the Code shall be deemed to include a reference to anycorresponding provision of future law.
          “Constructive Ownership” shall mean ownership of Capital Stock by a Personwho would be treated as an owner of such Capital Stock either directly orconstructively through the application of Section 318 of the Code, as modifiedby Section 856(d)(5) of the Code. The terms “Constructively Own,”“Constructively Owned” and “Constructive Owner” shall have the correlativemeanings.
          “Excepted Holder Limit” shall mean, provided that the affected ExceptedHolder agrees to comply with the requirements established by the Board ofDirectors pursuant to Section 5.2(f), and subject to adjustment pursuant toSection 5.2(h), the percentage limit on Beneficial Ownership or ConstructiveOwnership of shares of Capital Stock established by the Board of Directorspursuant to Section 5.2(f); provided, however, that no percentage limit shallbe set if, after the Excepted Holder Acquires Capital Stock up to that limit,five Persons could Beneficially Own or Constructively Own, in the aggregate,more than 50% in value of the shares of Capital Stock then outstanding.
          “Initial Date” shall mean the first date upon which the Corporationconsummates a private placement of Common Stock whereby the Corporationreceives net proceeds from the issuance and sale of shares of Common Stock insuch private placement of not less than $15 million.
          “Market Price” on any date shall mean, with respect to any class or seriesof outstanding shares of Capital Stock, the Closing Price for such CapitalStock on such date. The “Closing Price” on any date shall mean the last saleprice for such shares, regular way, or, in case
 

 

no such sale takes place on such day, the average of the closing bid andasked prices, regular way, for such shares, in either case as reported in theprincipal consolidated transaction reporting system with respect to securitieslisted or admitted to trading on the NYSE or, if such shares are not listed oradmitted to trading on the NYSE, as reported on the principal consolidatedtransaction reporting system with respect to securities listed on the principalnational securities exchange on which such shares are listed or admitted totrading or, if such shares are not listed or admitted to trading on anynational securities exchange, the last quoted price, or, if not so quoted, theaverage of the high bid and low asked prices in the over-the-counter market, asreported by the National Association of Securities Dealers, Inc., AutomatedQuotation System, or, if such system is no longer in use, the principal otherautomated quotation system that may then be in use or, if such shares are notquoted by any such organization, the average of the closing bid and askedprices as furnished by a professional market maker making a market in suchshares selected by the Board of Directors or, in the event that no tradingprice is available for such shares, the fair market value of the shares, asdetermined in good faith by the Board of Directors.
          “MGCL” shall mean the Maryland General Corporation Law, as amended fromtime to time.
          “NYSE” shall mean the New York Stock Exchange, Inc.
          “Non-Transfer Event” shall mean an event other than a purported Transferthat would cause any Person to Beneficially Own or Constructively Own CapitalStock in excess of the Ownership Limit (or would cause the Corporation to failto qualify as a REIT), including, without limitation, a change in the capitalstructure of the Corporation.
          “Ownership Limit” shall mean not more than 9.8% of the lesser of theaggregate number or the aggregate value of the outstanding shares of any classor series of Capital Stock. The value of the outstanding shares of CapitalStock shall be determined by the Board of Directors, which determination shallbe conclusive for all purposes hereof.
          “Person” shall mean an individual, corporation, partnership, limitedliability company or partnership, estate, trust (including a trust qualifiedunder Section 401(a) or 501(c)(17) of the Code), a portion of a trustpermanently set aside for or to be used exclusively for the purposes describedin Section 642(c) of the Code, association, private foundation within themeaning of Section 509(a) of the Code, joint stock company or other entity andalso includes a group as that term is used for purposes of Section 13(d)(3) ofthe Securities Exchange Act of 1934, as amended, provided, however, that thisshall not include an underwriter which participates in a registered publicoffering of the Corporation’s Capital Stock (or securities convertible into orexchangeable for Capital Stock) or an initial purchaser which participates in aprivate placement of shares of the Corporation’s Capital Stock (or securitiesconvertible into or exchangeable for Capital Stock), but only for a period ofninety (90) days following the date of purchase of shares of Capital Stock bythe underwriter in such public offering or the initial purchaser in suchprivate placement and only to the extent that purchases of shares of CapitalStock by such underwriter or initial purchaser in such public offering orprivate placement are necessary to facilitate such public offering or privateplacement.
 

 

          “Prohibited Owner” shall mean, with respect to any purported Transfer, anyPerson who, but for the provisions of Section 5.2(b), would Beneficially Own orConstructively Own shares of Capital Stock, and if appropriate in the context,shall also mean any Person who would have been the record owner of the sharesthat the Prohibited Owner would have so owned.
          “Restriction Termination Date” shall mean the first day after the InitialDate on which the Corporation determines pursuant to Section 7.3 of thisCharter that it is no longer in the best interests of the Corporation toattempt to, or continue to, qualify as a REIT or that compliance with therestrictions and limitations on Beneficial Ownership, Constructive Ownershipand Transfers of shares of Capital Stock set forth herein is no longer requiredin order for the Corporation to qualify as a REIT.
          “Stock-in-Trust” shall mean any Capital Stock designated Stock-in-Trustpursuant to Section 5.5(a).
          “Transfer” (as a noun) shall mean any sale, transfer, gift, assignment,devise or other disposition of Capital Stock or the right to vote or receivedividends on Capital Stock (including without limitation (i) the granting ofany option or entering into any agreement for the sale, transfer or otherdisposition of Capital Stock or the right to vote or receive dividends onCapital Stock or (ii) the sale, transfer, assignment or other disposition orgrant of any Acquisition Rights or other securities or rights convertible intoor exchangeable for Capital Stock, or the right to vote or receive dividends onCapital Stock), whether voluntary or involuntary, whether of record orbeneficially and whether by operation of law or otherwise. “Transfer” shallalso include any transfer of interests in other entities, and any change inrelationship between two or more Persons, that results in a change inBeneficial Ownership or Constructive Ownership of Capital Stock, whether byoperation of law or otherwise. “Transfer” (as a verb) shall have a correlativemeaning.
          “Trust” shall mean any separate trust created pursuant to Section 5.5(a)below and administered in accordance with the terms of Section 5.5 hereof, forthe exclusive benefit of any Charitable Beneficiary.
          “Trustee” shall mean the trustee of the Trust, which is selected by theCorporation but not affiliated with the Corporation or a Prohibited Owner, andany successor trustee appointed by the Corporation.
          (b) Ownership Limitation and Transfer Restrictions.
               (i) Subject to Section 5.8 bellow and except as provided in Section 5.2(f)below, from and after the Initial Date and prior to the Restriction TerminationDate:
                    (w) no Person shall Beneficially Own or Constructively Own Capital Stockin excess of the Ownership Limit;
                    (x) no Person shall Acquire Capital Stock, if, as a result of such action,the Capital Stock would be beneficially owned by fewer than 100 Persons(determined without reference to any rules of attribution under the Code);
 

 

                    (y) no Person shall Acquire Capital Stock or any interest therein if, as aresult of such acquisition, the Corporation would be “closely held” within themeaning of Section 856(h) of the Code or would otherwise fail to qualify as aREIT, as the case may be; and
                    (z) no Person shall Acquire Capital Stock or any interest therein if, as aresult of such acquisition, the Corporation would Constructively Own 10% ormore of the ownership interests in a tenant of the Corporation’s real property,within the meaning of Section 856(d)(2)(B) of the Code, or would otherwise failto qualify as a REIT, as the case may be.
               (ii) Any Transfer that would result in a violation of the restrictions insubsection (b)(i) above, shall be void ab initio as to the purported Transferof such number of shares of Capital Stock that would cause the violation of theapplicable restriction in subsection (b)(i), and the Prohibited Owner shallacquire no rights in such shares of Capital Stock.
          (c) Automatic Transfer to Trust.
               (i) If, notwithstanding the other provisions contained in this Article V,at any time from and after the Initial Date and prior to the RestrictionTermination Date, there is a purported Transfer or Non-Transfer Event such thatany Person would either Beneficially Own or Constructively Own Capital Stock inexcess of the Ownership Limit, then, except as otherwise provided in Section5.2(f) below, (x) the Prohibited Owner shall acquire no right or interest (or,in the case of a Non-Transfer Event, the person holding record title to theshares of Capital Stock Beneficially Owned or Constructively Owned by suchBeneficial Owner or Constructive Owner, shall cease to own any right orinterest) in such number of shares of Capital Stock which would cause suchProhibited Owner to Beneficially Own or Constructively Own Capital Stock inexcess of the Ownership Limit (rounded up to the nearest whole share), (y) suchnumber of shares of Capital Stock in excess of the Ownership Limit (rounded upto the nearest whole share) shall be designated Stock-in-Trust and, inaccordance with the provisions of Section 5.5(a) below, transferredautomatically and by operation of law to the Trust to be held in accordancewith Section 5.5 hereof, and (z) such Prohibited Owner shall submit such numberof shares of Capital Stock to the Trust for registration in the name of theTrustee. Any Prohibited Owner shall acquire no right or interest (or, in thecase of a Non-Transfer Event, the person holding title to the sharesBeneficially Owned or Constructively Owned by such Beneficial Owner orConstructive Owner, shall cease to own any right or interest) in such number ofshares which would cause such person to own shares in excess of the OwnershipLimit. Such transfer to a Trust and the designation of shares asStock-in-Trust shall be effective as of the close of business on the businessday prior to the date of the Transfer or Non-Transfer Event, as the case maybe.
               (ii) If, notwithstanding the other provisions contained in this Article V,at any time from and after the Initial Date and prior to the RestrictionTermination Date, there is a purported Transfer or Non-Transfer Event that, ifeffective, would (i) result in the Capital Stock being beneficially owned byfewer than 100 persons (determined without reference to any rules ofattribution), (ii) result in the Corporation being “closely held” within themeaning of Section 856(h) of the Code, (iii) cause the Corporation toConstructively Own 10% or more of
 

 

the ownership interests in a tenant of the Corporation’s real property,within the meaning of Section 856(d)(2)(B) of the Code, or (iv) cause theCorporation to otherwise fail to qualify as a REIT, as the case may be, then(x) the Prohibited Owner shall acquire no right or interest (or, in the case ofa Non-Transfer Event, the person holding record title to the Capital Stock withrespect to which such Non-Transfer Event occurred, shall cease to own any rightor interest) in such number of shares of Capital Stock, the ownership of whichby such Prohibited Owner would (A) result in the Capital Stock beingbeneficially owned by fewer than 100 Persons (determined without reference toany rules of attribution), (B) result in the Corporation being “closely held”within the meaning of Section 856(h) of the Code, (C) cause the Corporation toConstructively Own 10% or more of the ownership interests in a tenant of theCorporation’s property, within the meaning of Section 856(d)(2)(B) of the Code,or (D) would otherwise cause the Corporation to fail to qualify as a REIT, asthe case may be, (y) such number of shares of Capital Stock (rounded up to thenearest whole share) shall be designated Stock-in-Trust and, in accordance withthe provisions of Section 5.5(a) below, transferred automatically and byoperation of law to the Trust to be held in accordance with Section 5.5 hereof,and (z) the Prohibited Owner shall submit such number of shares of CapitalStock to the Trust for registration in the name of the Trustee.
          (d) Remedies for Breach. If the Board of Directors or an authorizeddesignee shall at any time determine that a purported Transfer of Capital Stockhas taken place in violation of Section 5.2(b) above or that a Person intendsto acquire or has attempted to acquire beneficial ownership (determined withoutreference to any rules of attribution), Beneficial Ownership or ConstructiveOwnership of any Capital Stock of the Corporation in violation of Section5.2(b) above, the Board of Directors or an authorized designee shall take suchaction as it deems advisable to refuse to give effect to or to prevent suchTransfer or acquisition, including, but not limited to, refusing to give effectto such Transfer or acquisition on the books of the Corporation or institutingproceedings to enjoin such Transfer or acquisition; provided, however, that anyTransfer, attempted Transfer, acquisition or attempted acquisition in violationof Section 5.2(b)(i) above shall automatically result in the transfer describedin Section 5.2(c) above, irrespective of any action (or non-action) by theBoard of Directors, except as provided in Section 5.2(f) below.
          (e) Notice of Restricted Transfer.
               (i) Any Person who acquires or attempts to Acquire Capital Stock inviolation of Section 5.2(b) above, and any Person who is a Prohibited Owner ofCapital Stock that is transferred to a Trust under Section 5.2(c) above, shallimmediately give written notice to the Corporation of such event or, in thecase of such a proposed or attempted transaction, give at least 15 days priorwritten notice, and shall provide to the Corporation such other information asthe Corporation may request in order to determine the effect, if any, of suchTransfer or attempted Transfer or such Non-Transfer Event on the Corporation’sstatus as a REIT.
               (ii) From and after the Initial Date and prior to the RestrictionTermination Date every Beneficial Owner or Constructive Owner of more than 5%,in the case that the Corporation has 2,000 or more stockholders of record, or1%, in the case that the Corporation has more than 200 but fewer than 2,000stockholders of record, or such other percentage as may be provided from timeto time in the pertinent income tax regulations
 

 

promulgated under the Code, of the number or value of the outstandingshares of Capital Stock of the Corporation shall, within 30 days after the endof each taxable year, give written notice to the Corporation stating the nameand address of such Beneficial Owner or Constructive Owner, the number ofshares of Capital Stock Beneficially or Constructively Owned, and a descriptionof the manner in which such shares are held. Each such Beneficial Owner orConstructive Owner shall provide to the Corporation such additional informationthat the Corporation may reasonably request in order to determine the effect,if any, of such Beneficial or Constructive Ownership on the Corporation’sstatus as a REIT and to ensure compliance with the Ownership Limit; and
               (iii) From and after the Initial Date and prior to the RestrictionTermination Date, each Person who is a Beneficial Owner or Constructive Ownerof Capital Stock of the Corporation and each Person (including the stockholderof record) who is holding Capital Stock of the Corporation for a BeneficialOwner or Constructive Owner shall provide to the Corporation such informationas the Corporation may reasonably request in order to determine theCorporation’s status as a REIT, to comply with the requirements of any taxingauthority or governmental agency or to determine any such compliance and toensure compliance with the Ownership Limit.
          (f) Exemption. The Board of Directors may, but shall in no case berequired to, exempt a Person (the “Excepted Holder”) from the Ownership Limitand establish an Excepted Holder Limit for such Excepted Holder, if the Boardof Directors concludes that no Person will, as the result of the ownership ofCapital Stock by the Excepted Holder, be considered to have BeneficialOwnership or Constructive Ownership of an amount of Capital Stock that willviolate the restrictions contained in Sections 5.2(b)(i)(x), 5.2(b)(i)(y) or5.2(b)(i)(z) above; provided, that:
               (i) the Board of Directors obtains such representations and undertakingsfrom each of the Excepted Holder and such other Persons as are reasonablynecessary to ascertain that no individual’s (as defined in Section 542(c)(2) ofthe Code) Beneficial Ownership or Constructive Ownership of Capital Stock willviolate the Ownership Limit or the restrictions contained in Sections5.2(b)(i)(x), 5.2(b)(i)(y) or 5.2(b)(i)(z);
               (ii) each of the Excepted Holder and such other Persons does not own andrepresents that it will not own, actually or Constructively, an interest in atenant of the Corporation (or a tenant of any entity owned or controlled by theCorporation) that would cause the Corporation to own, actually orConstructively, more than a 9.9% interest (as set forth in Section 856(d)(2)(B)of the Code) in such tenant and the Board of Directors obtains suchrepresentations and undertakings from such Person as are reasonably necessaryto ascertain this fact (for this purpose, a tenant from whom the Corporation(or an entity owned or controlled by the Corporation) derives (and is expectedto continue to derive) a sufficiently small amount of revenue such that, in theopinion of the Board of Directors, rent from such tenant would not adverselyaffect the Corporation’s ability to qualify as a REIT, shall not be treated asa tenant of the Corporation); and
 

 

               (iii) the Excepted Holder agrees that any violation or attempted violationof any conditions invoked by the Board of Directors will result in suchtransfer to the Trust of Capital Stock pursuant to Section 5.2(c) hereof.
In making any determination to exempt a Person from the Ownership Limit, theBoard of Directors may, in its sole discretion, but shall be under noobligation to, require a certified copy of a ruling from the Internal RevenueService or an opinion of counsel, both in form and substance satisfactory tothe Board of Directors.
Notwithstanding the receipt of any such ruling or opinion, the Board ofDirectors may impose such conditions or restrictions as it deems appropriate inconnection with granting such exception.
Unless and until a Person is exempted from the Ownership Limit by the Board ofDirectors, the Ownership Limit shall apply to such Person, notwithstanding thefact that if such Person were otherwise to Acquire Capital Stock in excess ofthe Ownership Limit, such Acquisition would not adversely affect theCorporation’s qualification as a REIT under the Code.
          (g) Legend. For so long as the Board of Directors deems appropriate, eachcertificate for shares of Capital Stock shall bear substantially the followinglegend:
  “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONSON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OFTHE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENTTRUST (“REIT”) UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE“CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLYPROVIDED IN THE CHARTER, (I) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELYOWN SHARES OF ANY CLASS OR SERIES OF THE CORPORATION’S CAPITAL STOCK INEXCESS OF 9.8% OF THE LESSER OF THE AGGREGATE NUMBER OR THE AGGREGATEVALUE OF THE OUTSTANDING SHARES OF ANY CLASS OR SERIES OF CAPITAL STOCKOF THE CORPORATION UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICHCASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (II) NO PERSON MAYBENEFICIALLY OR CONSTRUCTIVELY OWN CAPITAL STOCK THAT WOULD RESULT IN THECORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(H) OF THE CODE OROTHERWISE CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (III)NO PERSON MAY TRANSFER SHARES OF CAPITAL STOCK IF SUCH TRANSFER WOULDRESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN100 PERSONS. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS ORATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCKWHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWNSHARES OF CAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVELIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THERESTRICTIONS ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE
 

 

  SHARES OF CAPITAL STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLYTRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORECHARITABLE BENEFICIARIES. IN ADDITION, UPON THE OCCURRENCE OF CERTAINEVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBEDABOVE MAY BE VOID *AB INITIO*. ALL TERMS IN THIS LEGEND HAVE THE MEANINGSDEFINED IN THE CHARTER, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, ACOPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILLBE FURNISHED TO EACH HOLDER OF CAPITAL STOCK OF THE CORPORATION ONREQUEST AND WITHOUT CHARGE.”
          (h) Modification of Ownership Limit. Subject to Section 7.3, the Board ofDirectors may from time to time increase or decrease the Ownership Limit;provided, however, that any decrease shall only be made prospectively as tosubsequent holders of Capital Stock, unless the decrease is as a result of aretroactive change in existing law, in which case such decrease shall beeffective immediately; provided, further, that no increase shall be made if,after giving effect to such increase, five Persons could Beneficially Own orConstructively Own, in the aggregate, more than 50% in value of the shares ofCapital Stock then outstanding; provided, further, that prior to themodification of the ownership limitations, the Board of Directors may requiresuch opinions of counsel, affidavits, undertakings or agreements as it may deemnecessary or advisable in order to determine or ensure the Corporation’s statusas a REIT.
     5.3 ERISA Restrictions on Transfer and Ownership of Capital Stock.
          (a) Definitions. For purposes of this Section 5.3, the following termsshall have the following meanings:
          “Benefit Plan Investor” shall mean (i) an employee benefit plan (asdefined by Section 3(3) of ERISA), whether or not it is subject to Title I ofERISA; (ii) a plan described in Section 4975(e)(1) of the Code; (iii) an entitywhose underlying assets include the assets of any plan described in clause (i)or (ii) above by reason of the plan’s investment in such entity; or (iv) anentity that otherwise constitutes a “benefit plan investor” within the meaningof the Plan Asset Regulation.
          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, asamended, or any successor statute.
          “Fair Market Value” shall mean the fair market value as determined at thesole discretion of the Chief Executive Officer or the Board of Directors of theCorporation.
          “Plan Asset Regulation” shall mean the plan asset regulation promulgatedby the Department of Labor under ERISA at 29 C.F.R. §2510.3-101.
          “25% Limit” shall mean ownership by Benefit Plan Investors, in theaggregate, of 25% or more of the value of any class of equity interest in theCorporation (calculated by excluding the value of any interest held by anyperson, other than a Benefit Plan Investor, who has discretionary authority orcontrol with respect to the assets of the Corporation or any person
 

 

who provides investment advice to the Corporation for a fee (direct orindirect) with respect to such assets, or any affiliate of such person).
          (b) Ownership Limitations. Commencing on the Initial Date and terminatingas provided in Section 5.3(d) below, no Benefit Plan Investor may acquireshares of Capital Stock if aggregate Benefit Plan Investor ownership of CapitalStock would meet or exceed the 25% Limit. Prior to shares of Capital Stockqualifying as a class of “publicly-offered securities” or the availability ofanother exception to the “look-through” rule (i.e., the provisions of paragraph(a)(2) of the Plan Asset Regulation), transfers of shares of Capital Stock toBenefit Plan Investors that would increase aggregate Benefit Plan Investorownership of shares of Capital Stock to a level that would meet or exceed the25% Limit will be void ab initio as to the purported transfer of such number ofshares of Capital Stock that would cause aggregate Benefit Plan Investorownership to meet or exceed the 25% Limit, and the purported transferee shallacquire no rights in such shares of Capital Stock. If, notwithstanding theother provisions of this Section 5.3, at any time from and after the InitialDate and prior to the date provided in Section 5.3(d) below, there is apurported transfer of shares of Capital Stock to a Benefit Plan Investor suchthat the aggregate number of shares of Capital Stock owned by Benefit PlanInvestors, but for the operation of this sentence, would meet or exceed the 25%Limit, (i) shares of Capital Stock held by the transferee Benefit Plan Investorshall be deemed to be Stock-in-Trust, to the extent necessary to reduceaggregate Benefit Plan Investor ownership of shares of Capital Stock below the25% Limit, (ii) such number of shares of Capital Stock (rounded up to thenearest whole share) shall be transferred automatically and by operation of lawto a Trust (as described in Section 5.2(a) above) to be held in accordance withthis Section 5.3 and otherwise in accordance with applicable provisions of thisArticle V, provided that any references therein to ownership limitations shallbe deemed references to the ownership limitations set forth in this Section5.3(b), and (iii) the transferee Benefit Plan Investor purportedly owning suchStock-in-Trust shall submit such number of shares of Capital Stock forregistration in the name of the Trust. If, notwithstanding the otherprovisions of this Section 5.3, at any time from and after the Initial Date andprior to the date provided in Section 5.3(d) below, there is a purportedtransfer of shares of Capital Stock to a non-Benefit Plan Investor, such thatthe aggregate number of shares of Capital Stock owned by Benefit PlanInvestors, but for the operation of this sentence, would exceed the 25% Limit,(i) shares of Capital Stock held by Benefits Plan Investors shall be deemed tobe Stock-in-Trust, pro rata, to the extent necessary to reduce aggregateBenefit Plan Investor ownership of shares of Capital Stock below the 25% Limit,(ii) such number of shares of Capital Stock (rounded up, in the case of eachholder, to the nearest whole number of share) shall be transferredautomatically and by operation of law to a Trust (as described in Section5.2(a) above) to be held in accordance with this Section 5.3 and otherwise inaccordance with the applicable provisions of this Article V, provided that anyreferences therein to ownership limitations shall be deemed references to theownership limitations set forth in this Section 5.3(b), and (iii) the BenefitPlan Investors previously owning such Stock-in-Trust shall submit such numberof shares of Capital Stock for registration in the name of the Trust. Suchtransfer to a Trust and the designation of shares of Capital Stock asStock-in-Trust shall be effective as of the close of business on the BusinessDay prior to the date of the event that otherwise would have caused aggregateBenefit Plan Investor ownership of shares of Capital Stock to meet or exceedthe 25% Limit.
 

 

          (c) Transfers to Non-Benefit Plan Investors. During the period prior tothe discovery of the existence of the Trust by the Board of Directors, anytransfer of shares of Capital Stock by a Benefit Plan Investor to a non-BenefitPlan Investor shall reduce the number of Stock-in-Trust on a one-for-one basis,and to that extent such shares shall cease to be designated as Stock-in-Trustand shall be returned, effective at exactly the time of the transfer to thenon-Benefit Plan Investor, automatically and without further action by theCorporation or the Benefit Plan Investor, to the Benefit Plan Investor thatwould have been the transferee of the Stock-in-Trust but for the restrictionsin Section 5.3(b) above (or, if the Stock-in-Trust resulted from a purportedtransfer to a non-Benefit Plan Investor, then to Benefit Plan Investors (ortheir transferees, if applicable), pro rata, in accordance with the BenefitPlan Investors’ prior holdings). After the discovery of the existence of theTrust, but prior to the redemption of all discovered Stock-in-Trust and/or thesubmission of all discovered Stock-in-Trust for registration in the name of theTrust, any transfer of shares of Capital Stock by a Benefit Plan Investor to anon-Benefit Plan Investor shall reduce the number of Stock-in-Trust on aone-for-one basis, and to that extent such shares shall cease to be designatedas Stock-in-Trust and shall be returned, automatically and without furtheraction by the Corporation or the Benefit Plan Investors, to the Benefit PlanInvestors (or their transferees, if applicable), pro rata, in accordance withthe Benefit Plan Investors’ prior holdings; provided, however, that thissentence shall not apply in the case of a purported transfer to a Benefit PlanInvestor that violated the restrictions in Section 5.3(b) above and therebyresulted in Stock-in-Trust.
          (d) Termination. This Section 5.3 shall cease to apply and allStock-in-Trust designated as such pursuant to this Section 5.3 shall cease tobe designated as Stock-in-Trust and shall be returned, automatically and byoperation of law, to their purported owners, all of which shall occur at suchtime as shares of Capital Stock qualify as a class of “publicly-offeredsecurities” or if another exception to the “look-through” rule under the PlanAsset Regulation applies.
          (e) Legend. For so long as the Board of Directors deems appropriate, eachcertificate for shares of Capital Stock shall bear substantially the followinglegend:
  “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONSON OWNERSHIP AND TRANSFER TO PREVENT THE CORPORATION’S ASSETS FROM BEINGTREATED AS PLAN ASSETS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACTOF 1974, AS AMENDED (“ERISA”). SUBJECT TO FURTHER RESTRICTIONS ANDEXCEPT AS EXPRESSLY PROVIDED IN THE CHARTER, PRIOR TO THE DATE (I) THECOMMON STOCK QUALIFIES AS A CLASS OF “PUBLICLY-OFFERED SECURITIES,” OR(II) THE CORPORATION COMPLIES WITH ANOTHER AVAILABLE EXCEPTION UNDER THEPLAN ASSET REGULATIONS ISSUED BY THE DEPARTMENT OF LABOR, THE CORPORATIONWILL NOT ALLOW THE SALE, TRANSFER OR DISPOSITION OF THE COMMON STOCK,OTHER EQUITY SECURITIES OR INTERESTS THEREIN UNLESS, FOLLOWING SUCH SALE,TRANSFER OR DISPOSITION, LESS THAN 25% OF THE VALUE OF THE COMMON STOCKAND ANY OTHER CLASS OF SECURITY THAT IS TREATED AS AN EQUITY INTEREST INTHE CORPORATION FOR PURPOSES OF THE PLAN ASSET REGULATIONS IS HELD BY (A)EMPLOYEE BENEFIT PLANS (AS
 

 

  DEFINED IN SECTION 3(3) OF ERISA), WHETHER OR NOT SUBJECT TO TITLE I OFERISA), (B) PLANS DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, (C)ENTITIES WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF APLAN’S INVESTMENT IN SUCH ENTITIES, OR (D) ENTITIES THAT OTHERWISECONSTITUTE “BENEFIT PLAN INVESTORS” WITHIN THE MEANING OF THE PLAN ASSETREGULATIONS, WITH SUCH PERCENTAGE DETERMINED WITHOUT REGARD TO THE VALUEOF ANY SUCH INTERESTS HELD BY SENECA CAPITAL MANAGEMENT, LLC, OTHERPERSONS WITH AUTHORITY OR CONTROL WITH RESPECT TO THE ASSETS OF THECORPORATION OR THEIR AFFILIATES (OTHER THAN BENEFIT PLANS INVESTORS).ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TOBENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK WHICH CAUSESOR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OFCAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUSTIMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ONTRANSFER OR OWNERSHIP ARE VIOLATED, THE SHARES OF CAPITAL STOCKREPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF ATRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. INADDITION, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS INVIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID *AB INITIO*. ALLTERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CHARTER, AS THESAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THERESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDEROF CAPITAL STOCK OF THE CORPORATION ON REQUEST AND WITHOUT CHARGE.”
     5.4 Common Stock. Subject to the provisions of Sections 5.2, 5.5 and 5.6of this Article V, the Common Stock shall have the following preferences,voting powers, restrictions, limitations as to dividends and such other rightsas may be afforded by law.
          (a) Voting Rights. Except as may otherwise be required by law and subjectto any preferences of any class or series of Capital Stock hereinafterclassified or reclassified, each holder of Common Stock shall have one vote inrespect of each share of Common Stock on all actions to be taken by thestockholders of the Corporation, and, except as otherwise provided in respectof any class or series of Capital Stock, hereafter classified or reclassified,the exclusive voting power for all purposes shall be vested in the holders ofshares of Common Stock.
          (b) Dividend Rights. Subject to the provisions of law and any preferencesof any class or series of Capital Stock hereafter classified or reclassified,dividends, including dividends payable in shares of another class or series ofthe Corporation’s stock, may be paid on the Common Stock of the Corporation atsuch time and in such amounts as the Board of Directors may deem advisable andthe holders of shares of Common Stock shall share ratably in any suchdividends, in proportion to the number of shares of Common Stock held by themrespectively, on a share for share basis.
 

 

          (c) Liquidation Rights. In the event of any liquidation, dissolution orwinding up of the Corporation, whether voluntary of involuntary, the holders ofthe Common Stock shall be entitled, after payment or provision for payment ofthe debts and other liabilities of the Corporation and the amount to which theholders of any class or series of Capital Stock hereafter classified orreclassified having a preference on distributions in the liquidation,dissolution or winding up on the Corporation are entitled, together with theholders of any other class or series of Capital Stock hereafter classified orreclassified not having a preference on distributions in the liquidation,dissolution or winding up of the Corporation, to share ratably in the remainingnet assets of the Corporation.
     5.5 Stock-in-Trust.
          (a) Ownership in Trust. Upon any purported Transfer or other eventdescribed in Sections 5.2(c) or 5.3(b) that would result in a transfer ofshares of Capital Stock to a Trust, such shares of Capital Stock shall bedesignated Stock-In-Trust and shall be deemed to have been transferred to aTrustee as trustee of such Trust for the exclusive benefit of one or moreCharitable Beneficiaries. Such transfer to the Trust, and subsequentdesignation of Capital Stock as Stock-in-Trust, pursuant to Sections 5.2(c) or5.3(b) above shall be deemed to be effective as of the close of business on theBusiness Day prior to the purported Transfer or Non-Transfer Event that resultsin the transfer to the Trust. The Trustee shall be appointed by theCorporation and shall be a Person unaffiliated with the Corporation and anyProhibited Owner. Each Charitable Beneficiary shall be designated by theCorporation as provided in Section 5.5(f) below.
          (b) Status of Stock-in-Trust. Stock-in-Trust shall be issued andoutstanding shares of Capital Stock of the Corporation. The Prohibited Ownershall have no rights in Stock-in-Trust. The Prohibited Owner shall not benefiteconomically from ownership of any Stock-in-Trust, shall have no rights todividends or other distributions and shall not possess any rights to vote orother rights attributable to Stock-in-Trust.
          (c) Dividend and Voting Rights. The Trustee shall have all voting rightsand rights to dividends or other distributions with respect to Stock-in-Trust,which rights shall be exercised for the exclusive benefit of the CharitableBeneficiary. Any dividend or other distribution paid prior to the discovery bythe Corporation that the shares of Capital Stock have been transferred to theTrustee shall be paid by the recipient of such dividend or distribution to theTrustee upon demand and any dividend or other distribution authorized butunpaid shall be paid when due to the Trustee. Any dividend or distribution sopaid to the Trustee shall be held in trust for the Charitable Beneficiary. TheProhibited Owner shall have no voting rights with respect to Stock-in-Trustand, subject to Maryland law, effective as of the date that the shares ofCapital Stock have been transferred to the Trustee, the Trustee shall have theauthority (at the Trustee’s sole discretion) (i) to rescind as void any votecast by a Prohibited Owner prior to the discovery by the Corporation that theshares of Capital Stock have been transferred to the Trustee, and (ii) torecast such vote in accordance with the desires of the Trustee acting for thebenefit of the Charitable Beneficiary; provided, however, that if theCorporation has already taken irreversible corporate action, then the Trusteeshall not have the authority to rescind and recast such vote. Notwithstandingthe provisions of this Article V, until the Corporation has receivednotification that shares of Capital Stock have been transferred into a Trust,the
 

 

Corporation shall be entitled to rely on its stock transfer and otherstockholder records for purposes of preparing lists of stockholders entitled tovote at meetings, determining the validity and authority of proxies andotherwise conducting votes of stockholders.
          (d) Sale of Stock-in-Trust by Trustee. Within 20 days of receiving noticefrom the Corporation that shares of Capital Stock have been transferred to theTrust and designated Stock-in-Trust, the Trustee of the Trust shall sell theStock-in-Trust to a person, designated by the Trustee, whose ownership of theshares will not violate the ownership limitations set forth in Sections5.2(b)(i) or 5.3(b) or otherwise adversely affect the Corporation’s ability toqualify as a REIT. Upon such sale, the interest of the Charitable Beneficiaryin the shares sold shall terminate and the Trustee shall distribute the netproceeds of the sale to the Prohibited Owner and to the Charitable Beneficiaryas provided in this Section 5.5(d). The Prohibited Owner shall receive thelesser of (1) the price paid by the Prohibited Owner for the shares or, in thecase of a Non-Transfer Event or Transfer in which the Prohibited Owner did notgive value for the shares (e.g., in the case of a gift, devise or other suchtransaction) and which resulted in the transfer of the shares to the Trust, theMarket Price of the shares on the date of such Non-Transfer Event or Transfer,and (2) the price per share received by the Trustee from the sale or otherdisposition of the Stock-in-Trust. Any net sales proceeds in excess of theamount payable to the Prohibited Owner shall be immediately paid to theCharitable Beneficiary. If, prior to the discovery by the Corporation thatshares of Capital Stock have been transferred to the Trustee and designatedStock-in-Trust, such shares are sold by a Prohibited Owner, then (i) suchshares shall be deemed to have been sold on behalf of the Trust, and (ii) tothe extent that the Prohibited Owner received an amount for such shares thatexceeds the amount that such Prohibited Owner was entitled to receive pursuantto this Section 5.5(d), such excess shall be paid to the Trustee upon demand.
          (e) Purchase Right in Stock-in-Trust. Stock-in-Trust shall be deemed tohave been offered for sale to the Corporation, or its designee, at a price pershare equal to the lesser of (i) the price per share in the transaction thatresulted in such Stock-in-Trust (or, in the case of a devise, gift orNon-Transfer Event, the Market Price at the time of such devise, gift orNon-Transfer Event), and (ii) the Market Price on the date the Corporation, orits designee, accepts such offer. The Corporation shall have the right toaccept such offer until the Trustee has sold the shares held in the Trustpursuant to Section 5.5(d) above. Upon such a sale to the Corporation, theinterest of the Charitable Beneficiary in the shares sold shall terminate andthe Trustee shall distribute the net proceeds of the sale to the ProhibitedOwner.
          (f) Designation of Charitable Beneficiaries. By written notice to theTrustee, the Corporation shall designate one or more nonprofit organizations tobe the Charitable Beneficiary of the interest in the Trust such that (i) theshares of Capital Stock held in the Trust would not violate the restrictionsset forth in Sections 5.2(b) in the hands of such Charitable Beneficiary, and(ii) each such organization must be described in Section 501(c)(3) of the Codeand contributions to each such organization must be eligible for deductionunder each of Sections 170(b)(1)(A), 2055 and 2522 of the Code.
     5.6 Preferred Stock. The Preferred Stock may be issued from time to timein one or more classes or series. The Board of Directors is expresslyauthorized, in the resolution or resolutions providing for the issuance of anywholly unissued class or series of Preferred Stock,
 

 

to fix, state and express the powers, rights, designations, preferences,qualifications, limitations and restrictions thereof, including withoutlimitation: the rate of dividends upon which and the times at which dividendson shares of such class shall be payable and the preference, if any, which suchdividends shall have relative to dividends on shares of any other class orclasses of stock of the Corporation; whether such dividends shall be cumulativeor noncumulative, and if cumulative, the date or dates from which dividends onshares of such class shall be cumulative; the voting rights, if any, to beprovided for shares of such class; the rights, if any, which the holders ofshares of such class shall have in the event of any voluntary or involuntaryliquidation, dissolution or winding up of the affairs of the Corporation; therights, if any, which the holders of shares of such class shall have to convertsuch shares into or exchange such shares for shares of stock of theCorporation, and the terms and conditions, including price and rate of exchangeof such conversion or exchange; and the redemption rights (including sinkingfund provisions), if any, for shares of such class or series; and such otherpowers, rights, designations, preferences, qualifications, limitations andrestrictions as the Board of Directors may desire to so fix. The Board ofDirectors is also expressly authorized to fix the number of shares constitutingsuch class or series and to increase or decrease the number of shares of anyclass or series prior to the issuance of shares of that class and to increaseor decrease the number of shares of any class or series subsequent to theissuance of shares of that class or series, but not to decrease such numberbelow the number of shares of such class or series then outstanding. In casethe number of shares of any class or series shall be so decreased, the sharesconstituting such decrease shall resume the status which they had prior to theadoption of the resolution originally fixing the number of shares of such classor series.
     5.7 Classification and Reclassification of Capital Stock.
          (a) Subject to the foregoing provisions of this Charter, the power of theBoard of Directors to classify and reclassify any of the unissued shares ofCapital Stock shall include, without limitation, subject to the provisions ofthis Charter, authority to classify or reclassify any unissued shares of suchCapital Stock into shares of Common Stock or shares of a class or classes orseries of Preferred Stock, preference stock, special stock or other stock, bydetermining, fixing, or altering one or more of the following:
               (i) The distinctive designation of such class or series and the number ofshares to constitute such class or series, provided that, unless otherwiseprohibited by the terms of such or any other class or series, the number ofshares of any class or series may be decreased by the Board of Directors inconnection with any classification or reclassification of unissued shares andthe number of shares of such class or series may be increased by the Board ofDirectors in connection with any such classification or reclassification, andany shares of any class or series which have been redeemed, purchased,otherwise acquired or converted into shares of Common Stock or any other classor series shall become part of the authorized capital stock and be subject toclassification and reclassification as provided in this Section.
               (ii) Whether or not and, if so, the rates, amounts and times at which, andthe conditions under which, dividends shall be payable on shares of such classor series, whether any such dividends shall rank senior or junior to or on aparity with the dividends payable on any other class or series of stock, andthe status of any such dividends as cumulative, cumulative to a limited extentor non-cumulative and as participating or non-participating.
 

 

               (iii) Whether or not shares of such class or series shall have votingrights and, if so, the terms of such voting rights.
               (iv) Whether or not shares of such class or series shall have conversionor exchange privileges and, if so, the terms and conditions thereof, includingprovision for adjustment of the conversion or exchange rate in such events orat such times as the Board of Directors shall determine.
               (v) Whether or not shares of such class or series shall be subject toredemption and, if so, the terms and conditions of such redemption, includingthe date or dates upon or after which they shall be redeemable and the amountper share payable in case of redemption, which amount may vary under differentconditions and at different redemption dates; and whether or not there shall beany sinking fund or purchase account in respect thereof, and if so, the termsthereof.
               (vi) The rights of the holders of shares of such class or series upon theliquidation, dissolution or winding up of the affairs of, or upon anydistribution of the assets of, the Corporation, which rights may vary dependingupon whether such liquidation, dissolution or winding up is voluntary orinvoluntary and, if voluntary, may vary at different dates, and whether suchrights shall rank senior or junior to or on a parity with such rights of anyother class or series of stock.
               (vii) Whether or not there shall be any limitations applicable, whileshares of such class or series are outstanding, upon the payment of dividendsor making of distributions on, or the acquisition of, or the use of moneys forpurchase or redemption of, any Capital Stock of the Corporation, or upon anyother action of the Corporation, including action under Section 5.1 and thisSection, and, if so, the terms and conditions thereof.
               (viii) Any other preferences, rights, restrictions, including restrictionson transferability, and qualifications of shares of such class or series, notinconsistent with law and this Charter of the Corporation.
          (b) For the purposes hereof and of any articles supplementary to thisCharter providing for the classification or reclassification of any shares ofCapital Stock or of any other charter document of the Corporation (unlessotherwise provided in any such articles or document), any class or series ofCapital Stock of the Corporation shall be deemed to rank:
               (i) prior to another class or series either as to dividends or uponliquidation, if the holders of such class or series shall be entitled to thereceipt of dividends or of amounts distributable on liquidation, dissolution orwinding up, as the case may be, in preference or priority to holders of suchother class or series;
               (ii) on a parity with another class or series either as to dividends orupon liquidation, whether or not the dividend rates, dividend payment dates orredemption or liquidation price per share thereof be different from those ofsuch others, if the holders of such class or series of stock shall be entitledto receipt of dividends or amounts distributable upon liquidation, dissolutionor winding up, as the case may be, in proportion to their respective
 

 

dividend rates or redemption or liquidation prices, without preference orpriority over the holders of such other class or series; and
               (iii) junior to another class or series either as to dividends or uponliquidation, if the rights of the holders of such class or series shall besubject or subordinate to the rights of the holders of such other class orseries in respect of the receipt of dividends or the amounts distributable uponliquidation, dissolution or winding up, as the case may be.
     5.8 Settlement. Nothing in this Article V shall be interpreted topreclude the settlement of any transaction entered into through the facilitiesof the NYSE any other national securities exchange or The Nasdaq NationalMarket system. The Capital Stock which is the subject of such transactionshall continue to be subject to the terms of this Article V subsequent to suchsettlement.
     5.9 Remedies Not Limited. Subject to Section 5.8 above, nothing containedin this Article V shall limit the authority of the Board of Directors to takesuch other action as it deems necessary or advisable to protect the Corporationand the interests of its stockholders in preserving the Corporation’s status asa REIT. Without limiting the foregoing, the Corporation is authorizedspecifically to seek equitable relief, including injunctive relief, to enforcethe provisions of this Article V.
     5.10 Ambiguity. In the case of an ambiguity in the application of any ofthe provisions of this Article V, including any definition contained in Section5.2(a), the Board of Directors shall have the power to determine theapplication of the provisions of this Article V with respect to any situationbased on the facts known to it.
     5.11 Severability. If any provision of this Article V or any applicationof any such provision is determined to be invalid by a federal or state courthaving jurisdiction over the issue, the validity of the remaining provisionsshall not be affected and other applications of such provision shall beaffected only to the extent necessary to comply with the determination of suchcourt.
     5.12 Non-Waiver. No delay or failure on the part of the Corporation orthe Board of Directors in exercising any right hereunder shall operate as awaiver of any right of the Corporation or the Board of Directors, as the casemay be, except to the extent specifically waived in writing.
**ARTICLE VI**
**THE BOARD OF DIRECTORS**
     6.1 Number and Classifications of Directors. The business and affairs ofthe Corporation shall be managed under the direction of the Board of Directors.The number of directors of the Corporation initially shall be five (5), whichnumber may be increased or decreased pursuant to the Bylaws, but shall never beless than the minimum number required by the Maryland General Corporation Law.The names of the directors and the Class (as defined below) of each suchdirector who shall serve until their respective successors are duly elected andqualified are:
 

 
   Gail P. Seneca Class IIAlbert J. Gutierrez Class IBruce A. Miller Class IIIJohn McMahan Class IRobert B. Goldstein Class II
     6.2 Classified Board. The directors (other than any director electedsolely by holders of one or more classes or series of Preferred Stock) shall beclassified, with respect to the terms for which they severally hold office,into three classes (each, a “Class”), as nearly equal in number as possible,the Class I directors to hold office initially for a term expiring at theannual meeting of stockholders in 2004, the Class II directors to hold officeinitially for a term expiring at the annual meeting of stockholders in 2005 andthe Class III directors to hold office initially for a term expiring at theannual meeting of stockholders in 2006, with the members of each Class to holdoffice until their successors are duly elected and qualified. At each annualmeeting of the stockholders, the successors to the class of directors whoseterm expires at such meeting shall be elected to hold office for a termexpiring at the annual meeting of stockholders held in the third year followingthe year of their election and until their successors are duly elected andqualified.
     6.3 Filling Vacancies. The directors may increase the number of directorsand may fill any vacancy, whether resulting from an increase in the number ofdirectors or otherwise, on the Board of Directors occurring before the firstannual meeting of stockholders in the manner provided in the Bylaws.
     6.4 No Cumulative Voting. Stockholders shall not be entitled tocumulative voting rights with respect to the election of directors.
     6.5 Removal of Directors. Subject to the rights of holders of one or moreclasses or series of Preferred Stock to elect or remove one or more directors,any director, or the entire Board of Directors, may be removed from office atany time by the stockholders, but only for cause and then only by theaffirmative vote of at least two thirds (66 2/3%) of the votes entitled to becast by the stockholders generally in the election of directors. For thepurposes of this Section 6.5, “cause” shall mean, with respect to anyparticular director, a final judgment of a court of competent jurisdictionholding that such director caused demonstrable, material harm to theCorporation through bad faith or active and deliberate dishonesty.
     6.6 Reserved Powers of the Board of Directors. The enumeration anddefinition of particular powers of the Board of Directors included in theforegoing provisions of Article VI or the provisions of Article VII shall in noway be limited or restricted by reference to or inference from the terms of anyother clause of this or any other Article of this Charter, or construed as ordeemed by inference or otherwise in any manner to exclude or limit any powersconferred upon the Board of Directors under the general laws of the State ofMaryland now or hereafter in force.
 

 

**ARTICLE VII**
**RIGHTS AND POWERS OF CORPORATION,****BOARD OF DIRECTORS AND OFFICERS**
     In carrying on its business, or for the purpose of attaining or furtheringany of its objects, the Corporation shall have all of the rights, powers andprivileges granted to corporations by the laws of the State of Maryland, aswell as the power to do any and all acts and things that a natural person orpartnership could do as now or hereafter authorized by law, either alone or inpartnership or conjunction with others. In furtherance and not in limitationof the powers conferred by statute, and without limiting any other proceduresavailable by law or otherwise to the Corporation, the powers of the Corporationand of the directors and stockholders shall include the following:
     7.1 Authorization by Board of Directors of Stock Issuances. The Board ofDirectors is hereby empowered to authorize the issuance from time to time ofshares of any class or series of Capital Stock, whether now or hereafterauthorized, or securities convertible into any class or series of CapitalStock, whether now or hereafter authorized, for such consideration as may bedeemed advisable by the Board of Directors (or without consideration in thecase of a stock split or dividend) and without any action by the stockholders.
     7.2 No Preemptive Rights. Except as may provided by the Board ofDirectors in authorizing the issuance of shares of Preferred Stock pursuant toSection 5.6 of this Charter, no holder of any stock or any other securities ofthe Corporation, whether now or hereafter authorized, shall have any preemptiveright to subscribe to or purchase (i) any shares of Capital Stock of theCorporation, (ii) any warrants, rights, or options to purchase any such shares,or (iii) any other securities of the Corporation or obligations convertibleinto any shares of Capital Stock of the Corporation or such other securities orinto warrants, rights or options to purchase any such shares or othersecurities.
     7.3 REIT Qualification. From and after the Initial Date and prior to theRestriction Termination Date, the Board of Directors shall use its commerciallyreasonable efforts to cause the Corporation to qualify for United Statesfederal income tax treatment as a REIT in accordance with the provisions of theCode applicable to a REIT and shall not take any action which could adverselyaffect the ability of the Corporation to qualify as a REIT. In furtherance ofthe foregoing, the Board of Directors shall use its commercially reasonableefforts to take such actions as are necessary or appropriate, and may take suchactions as in its sole judgment and discretion are desirable, to preserve thestatus of the Corporation as a REIT; provided, however, that if the Board ofDirectors determines that it is no longer in the best interests of theCorporation to continue to be qualified as a REIT, the Board of Directors mayrevoke or otherwise terminate the Corporation’s REIT election. The Board ofDirectors also may determine that compliance with any restriction or limitationon stock ownership and transfers set forth in Article V hereof is no longerrequired for REIT qualification.
     7.4 Powers of the Board of Directors. The Board of Directors shall,consistent with applicable law, have the power in its sole discretion todetermine from time to time in accordance with sound accounting practice orother reasonable valuation methods what
 

 

constitutes annual or other net profits, earnings, surplus, or net assetsin excess of capital; to fix and vary from time to time the amount to bereserved as working capital, or determine that retained earnings or surplusshall remain in the hands of the Corporation; to set apart out of any funds ofthe Corporation such reserve or reserves in such amount or amounts and for suchproper purpose or purposes as it shall determine and to abolish any suchreserve or any part thereof; to distribute and pay distributions or dividendsin stock, cash or other securities or property, out of surplus or any otherfunds or amounts legally available therefor, at such times and to thestockholders of record on such dates as it may, from time to time, determine;and to determine whether and to what extent and at what times and places andunder what conditions and regulations the books, accounts and documents of theCorporation, or any of them, shall be open to the inspection of stockholders,except as otherwise provided by statute or by the Bylaws of the Corporation,and, except as so provided, no stockholder shall have any right to inspect anybook, account or document of the Corporation unless authorized so to do byresolution of the Board of Directors.
     7.5 Extraordinary Actions. Except as specifically provided in Section 6.5(relating to removal of directors) and except as specifically provided in thenext sentence of this Section 7.5, notwithstanding any provision of lawrequiring a greater proportion of the votes entitled to be cast by thestockholders in order to take or approve any action, such action shall be validand effective if taken or approved by the affirmative vote of a majority of allvotes entitled to be cast by the stockholders on the matter. Amendments,alterations and modifications of Section 6.5 shall require the affirmative voteof at least two-thirds (66 2/3%) of the votes entitled to be cast bystockholders on the matter.
     7.6 Advisor Agreements. Subject to such approval of stockholders andother conditions, if any, as may be required by any applicable statute, rule orregulation, the Board of Directors may authorize the execution and performanceby the Corporation of one or more agreements with any person, corporation,association, company, trust, partnership (limited or general) or otherorganization (including, without limitation, any affiliate of the Corporationand/or its directors) whereby, subject to the supervision and control of theBoard of Directors, any such other person, corporation, association, company,trust, partnership (limited or general) or other organization (including,without limitation, any affiliate of the Corporation and/or its directors)shall render or make available to the Corporation managerial, investment,advisory and/or related services, office space and other services andfacilities (including, if deemed advisable by the Board of Directors, themanagement or supervision of the investments of the Corporation) upon suchterms and conditions as may be provided in such agreement or agreements(including, if deemed fair and equitable by the Board of Directors, thecompensation payable thereunder by the Corporation).
     7.7 Conflicts of Interest. Any director or officer of the Corporationindividually, or any firm of which any director or officer may be a member, orany corporation or association of which any director or officer may be adirector or officer or in which any director or officer may be interested asthe holder of any amount of its stock or otherwise, may be a party to, or maybe pecuniarily or otherwise interested in, any contract or transaction of theCorporation, and, in the absence of fraud, no contract or other transactionshall be thereby affected or invalidated; provided, however, that (a) such factshall have been disclosed or shall have been known to the Board of Directors orthe committee thereof that approved such contract or transaction and such
 

 

contract or transaction shall have been approved or satisfied by theaffirmative vote of a majority of the disinterested directors, or (b) such factshall have been disclosed or shall have been known to the stockholders entitledto vote, and such contract or transaction shall have been approved or ratifiedby a majority of the votes cast by the stockholders entitled to vote, otherthan the votes of shares owned of record or beneficially by the interesteddirector or corporation, firm or other entity, or (c) the contract ortransaction is fair and reasonable to the Corporation. Any director of theCorporation who is also a director or officer of or interested in such othercorporation or association, or who, or the firm of which he or she is a member,is so interested, may be counted in determining the existence of a quorum atany meeting of the Board of Directors of the Corporation which shall authorizeany such contract or transaction, with like force and effect as if he or shewere not such director or officer of such other corporation or association orwere not so interested or were not a member of a firm so interested.
     7.8 Amendment of Charter. The Corporation reserves the right to amend,alter, change or repeal any provision contained in this Charter, in the mannernow or hereafter prescribed by statute and by this Charter, and all rightsconferred upon stockholders herein are granted subject to this reservation.
**ARTICLE VIII**
**INDEMNIFICATION**
     The Corporation shall indemnify, in the manner and to the fullest extentpermitted by law, any person (or the estate of any person) who is or was aparty to, or is threatened to be made a party to, any threatened, pending orcompleted action, suit or proceeding, whether or not by or in the right of theCorporation, and whether civil, criminal, administrative, investigative orotherwise, by reason of the fact that such person is or was a director orofficer of the Corporation, while a director or officer is or was serving atthe request of the Corporation as a director, officer, agent, trustee, partner,member or employee of another corporation, partnership, joint venture, limitedliability company, trust, real estate investment trust, employee benefit planor other enterprise. To the fullest extent permitted by law, theindemnification provided herein shall include expenses (including attorneys’fees), judgments, fines and amounts paid in settlement and any such expensesmay be paid by the Corporation in advance of the final disposition of suchaction, suit or proceeding. Any repeal or modification of this Article VIIIshall not result in any liability for a director with respect to any action oromission occurring prior to such repeal or modification.
     The Corporation may, to the fullest extent permitted by law, purchase andmaintain insurance on behalf of any such person against any liability which maybe asserted against such person.
     The indemnification provided herein shall not be deemed to limit the rightof the Corporation to indemnify any other person for any such expenses to thefullest extent permitted by law, nor shall it be deemed exclusive of any otherrights to which any person seeking indemnification from the Corporation may beentitled under any agreement, vote of stockholders or disinterested directors,or otherwise, both as to action in such person’s official capacity and as toaction in another capacity while holding such office.
 

 

**ARTICLE IX**
**LIMITATION ON LIABILITY**
     To the fullest extent permitted by Maryland statutory or decisional law,as amended or interpreted from time to time, no director or officer of theCorporation shall be personally liable to the Corporation or its stockholders,or any of them, for money damages. Neither the amendment nor the repeal ofthis Article IX, nor the adoption of any other provision in this Charterinconsistent with this Article IX, shall eliminate or reduce the protectionafforded by this Article IX to a director or officer of the Corporation withrespect to any matter which occurred, or any cause of action, suit or claimwhich but for this Article IX would have accrued or arisen, prior to suchamendment, repeal or adoption.
     THIRD: The amendment to and restatement of this Charter as hereinaboveset forth have been duly advised by the Board of Directors and approved by thestockholders of the Corporation as required by law.
     FOURTH: The current address of the principal office of the Corporation inthe State of Maryland is as set forth in Article III of the foregoing amendmentand restatement of this Charter.
     FIFTH: The name and address of the current resident agent of theCorporation in the State of Maryland is as set forth in Article IV of theforegoing amendment and restatement of this Charter.
     SIXTH: The number of directors of the Corporation and the names of thosecurrently in office are as set forth in Article VI of the foregoing amendmentand restatement of this Charter.
     SEVENTH: The total number of shares of stock which the Corporation hadauthority to issue immediately prior to this amendment and restatement was1,000,000 shares, each having a par value of one-tenth of one cent ($0.001),all of one class. The aggregate par value of all shares of stock having parvalue was $1,000.
     EIGHTH: The total number of shares of stock which the Corporation hasauthority to issue pursuant to the foregoing amendment and restatement of thisCharter is 110,000,000 shares of stock, consisting of 100,000,000 shares ofCommon Stock, each having a par value of one-tenth of one cent ($0.001), and10,000,000 shares of Preferred Stock, each having a par value of one-tenth ofone cent ($0.001), which may be issued in one or more classes. The aggregatepar value of all authorized shares of stock having par value is $110,000.00
     NINTH: The undersigned Chairman of the Board acknowledges these Articlesof Amendment and Restatement to be the corporate act of the Corporation and asto all matters or facts required to be verified under oath, the undersignedChairman of the Board acknowledges that, to the best of her knowledge,information, and belief, these matters and facts are true in all materialrespects and that this statement is made under the penalties for perjury.
 

 

     **IN WITNESS WHEREOF**, the Corporation has caused these Second Articles ofAmendment and Restatement to be signed in its name and on its behalf by itsChairman of the Board and attested to by its Secretary as of the 6th day ofAugust, 2004.         By:  /s/ Gail Seneca   Gail Seneca    Chairman of the Board   
ATTEST:     By: /s/ Peter T. Healy        Peter T. Healy   Secretary