**
**Exhibit 3.1**

**STARWOOD REAL ESTATE INCOME TRUST, INC.**

**ARTICLES OF AMENDMENT AND RESTATEMENT**

FIRST: Starwood Real Estate Income Trust, Inc., a Maryland corporation (the “Corporation”) desires to amendand restate its charter as currently in effect and as hereinafter amended. 

SECOND: The following provisions are all the provisionsof the charter currently in effect and as hereinafter amended: 

**ARTICLE I**

**NAME**

The name of thecorporation (which is hereinafter called the “Corporation”) is: Starwood Real Estate Income Trust, Inc. 

**ARTICLE II**

**PURPOSES AND POWERS**

The purposes for which the Corporation is formed are to engage in any lawful act or activity (including, without limitation or obligation,engaging in business as a real estate investment trust under the Internal Revenue Code of 1986, as amended, or any successor statute (the “Code”)) for which corporations may be organized under the general laws of the State ofMaryland as now or hereafter in force. 

**ARTICLE III**

**PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT**

The address of the principal office of the Corporation in the State of Maryland is c/o The Corporation Trust Incorporated, 2405 York Rd.,Suite 201, Lutherville Timonium, Maryland 21093. The name and address of the resident agent of the Corporation are The Corporation Trust Incorporated, 2405 York Road, Suite 201, Timonium, Maryland 21093. The resident agent is a Maryland corporation.

**ARTICLE IV**

**DEFINITIONS**

As used inthe Charter, the following terms shall have the following meanings unless the context otherwise requires: 

“AcquisitionExpenses” shall mean any and all expenses, exclusive of Acquisition Fees, incurred by the Corporation, the Advisor or any Affiliate of either in connection with the selection, evaluation, structuring, acquisition, origination, financing anddevelopment of any assets, whether or not acquired, including, without limitation, legal fees and expenses, travel and communications expenses, costs of appraisals, nonrefundable option payments on property not acquired, accounting fees and expensesand title insurance premiums and the costs of performing due diligence. 
**

“Acquisition Fee” shall mean any and all fees and commissions, exclusive ofAcquisition Expenses, paid by any Person to any other Person (including any fees or commissions paid by or to any Affiliate of the Corporation or the Advisor) in connection with making or investing in Mortgages or Real Estate-Related Securities orthe purchase, development or construction of a Property, including real estate commissions, selection fees, Development Fees, Construction Fees, nonrecurring management fees, loan fees, points or any other fees of a similar nature. Excluded shall beDevelopment Fees and Construction Fees paid to any Person not affiliated with the Sponsor in connection with the actual development and construction of a project. 

“Advisor” shall mean the Person appointed, employed or contracted with by the Corporation pursuant to Section 8.1 hereofand responsible for directing or performing the day-to-day business affairs of the Corporation, including any Person to whom the Advisor subcontracts all orsubstantially all of such functions. 

“Advisory Agreement” shall mean the agreement between the Corporation and theAdvisor pursuant to which the Advisor will direct or perform the day-to-day business affairs of the Corporation. 

“Affiliate” shall mean, with respect to any Person, (i) any Person directly or indirectly owning, controlling orholding, with the power to vote, 10% or more of the outstanding voting securities of such other Person; (ii) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with the power tovote, by such other Person; (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person, including any partnership in which such Person is a general partner; (iv) any executive officer,director, trustee or general partner of such other Person; and (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner. 

“Aggregate Share Ownership Limit” shall mean 9.8%, in value or number of shares, whichever is more restrictive, of theaggregate of the outstanding Shares, or such other percentage determined by the Board of Directors in accordance with Section 6.1.8 of the Charter. 

“asset” of the Corporation shall mean any Property, Mortgage, Real Estate-Related Security or other asset owned by theCorporation, directly or indirectly through one or more of its Affiliates. 

“Average Invested Assets” shall mean, for aspecified period, the average of the aggregate book value of the assets of the Corporation invested, directly or indirectly, in equity interests in and loans secured by real estate, including all Properties, Mortgages and Real Estate-RelatedSecurities and consolidated and unconsolidated Joint Ventures or other partnerships, before deducting depreciation, amortization, impairments, bad debt reserves or other non-cash reserves, computed by takingthe average of such values at the end of each month during such period. 

“Beneficial Ownership” shall mean ownership ofShares by a Person, whether the interest in Shares is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 544 of the Code, as modified bySection 856(h)(1)(B) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings. 

“Bidder” shall have the meaning as provided in Section 11.7(a) herein. 

“Board” or “Board of Directors” shall mean the Board of Directors of the Corporation. 

“Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on whichbanking institutions in New York City are authorized or required by law, regulation or executive order to close. 

“Bylaws” shall mean the Bylaws of the Corporation, as amended from time to time. 

“Charitable Beneficiary” shall mean one or more beneficiaries of the Charitable Trust as determined pursuant toSection 6.2.6, provided that each such organization must be described in Section 501(c)(3) of the Code and contributions to each such organization must be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of theCode. 

 
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“Charitable Trust” shall mean any trust provided for in Section 6.2.1.

“Charitable Trustee” shall mean the Person unaffiliated with the Corporation and a Prohibited Owner that is appointed bythe Corporation to serve as Trustee of the Charitable Trust. 

“Charter” shall mean the charter of the Corporation. 

“Class D Common Shares” shall have the meaning as provided in Section 5.1 herein. 

“Class I Common Shares” shall have the meaning as provided in Section 5.1 herein. 

“Class S Common Shares” shall have the meaning as provided in Section 5.1 herein. 

“Class T Common Shares” shall have the meaning as provided in Section 5.1 herein. 

“Class D NAV Per Share” shall mean the net asset value of the Corporation allocable to the Class DCommon Shares (including any reduction for Stockholder Servicing Fees as described in the Prospectus), determined as described in the Prospectus, divided by the number of outstanding Class D Common Shares. 

“Class D Conversion Rate” shall mean the fraction, the numerator of which is the Class D NAV PerShare and the denominator of which is the Class I NAV Per Share. 

“Class I NAV Per Share” shallmean the net asset value of the Corporation allocable to the Class I Shares, determined as described in the Prospectus, divided by the number of outstanding Class I Shares. 

“Class T NAV Per Share” shall mean the net asset value of the Corporation allocable to the Class TCommon Shares (including any reduction for Stockholder Servicing Fees as described in the Prospectus), determined as described in the Prospectus, divided by the number of outstanding Class T Common Shares. 

“Class T Conversion Rate” shall mean the fraction, the numerator of which is the Class T NAV PerShare and the denominator of which is the Class I NAV Per Share. 

“Class S NAV Per Share” shallmean the net asset value of the Corporation allocable to the Class S Common Shares (including any reduction for Stockholder Servicing Fees as described in the Prospectus), determined as described in the Prospectus, divided by the number ofoutstanding Class S Common Shares. 

“Class S Conversion Rate” shall mean the fraction, thenumerator of which is the Class S NAV Per Share and the denominator of which is the Class I NAV Per Share. 

“Code” shall have the meaning as provided in Article II herein. 

“Commencement of the Initial Public Offering” shall mean the date that the Securities and Exchange Commission declareseffective the registration statement filed under the Securities Act for the Initial Public Offering. 

“Common Share OwnershipLimit” shall mean 9.8% (in value or in number of Common Shares, whichever is more restrictive) of the aggregate of the outstanding Common Shares, or such other percentage determined by the Board of Directors in accordance withSection 6.1.8 of the Charter. 

“Common Shares” shall have the meaning as provided in Section 5.1 herein. 

“Competitive Real Estate Commission” shall mean a real estate or brokerage commission paid for the purchase or Sale of aProperty that is reasonable, customary and competitive in light of the size, type and location of the Property. 

 
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“Construction Fee” shall mean a fee or other remuneration for acting asgeneral contractor and/or construction manager to construct improvements, supervise and coordinate projects or provide major repairs or rehabilitations on a Property. 

“Constructive Ownership” shall mean ownership of Shares by a Person, whether the interest in Shares is held directly orindirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “ConstructiveOwner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings. 

“Contract Purchase Price” shall mean the amount actually paid or allocated in respect of the purchase, development,construction or improvement of a Property or the amount of funds advanced with respect to a Mortgage, or the amount actually paid or allocated in respect of the purchase of other assets of the Corporation, in each case exclusive of Acquisition Feesand Acquisition Expenses. 

“Corporation” shall have the meaning as provided in Article I herein. 

“Dealer Manager” shall mean such Person selected by the Board to act as the dealer manager for an Offering. 

“Development Fee” shall mean a fee for the packaging of a Property, including the negotiation and approval of plans, and anyassistance in obtaining zoning and necessary variances and financing for a specific Property, either initially or at a later date. 

“Directors” shall have the meaning as provided in Section 7.1 herein. 

“Distributions” shall mean any distributions (as such term is defined inSection 2-301 of the MGCL), pursuant to Section 5.5 hereof, by the Corporation to owners of Shares, including distributions that may constitute a return of capital for federal income tax purposes.

“11.7(b) notice” shall have the meaning as provided in Section 11.7 herein. 

“Excepted Holder” shall mean a Stockholder for whom an Excepted Holder Limit is created by the Board of Directors pursuant toSection 6.1.7. 

“Excepted Holder Limit” shall mean, provided that the affected Excepted Holder agrees to comply withthe requirements established by the Board of Directors pursuant to Section 6.1.7 and subject to adjustment pursuant to Section 6.1.8, the percentage limit established by the Board of Directors pursuant to Section 6.1.7. 

“Excess Amount” shall have the meaning as provided in Section 8.8 herein. 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, or any successor statutethereto. 

“Gross Proceeds” shall mean the aggregate purchase price of all Shares sold for the account of the Corporationthrough an Offering, without deduction for Selling Commissions. Solely for the purpose of computing Gross Proceeds in Section 5.2.3(c), the purchase price of any Class T Common Share or Class S Common Share shall be deemed to be thefull, non-discounted offering price at the time of purchase of each such Class T Common Share or Class S Common Share. 

“Indemnitee” shall have the meaning as provided in Section 12.2(b) herein. 

“Independent Appraiser” shall mean a Person with no material current or prior business or personal relationship with theAdvisor or the Directors and who is engaged to a substantial extent in the business of rendering opinions regarding the value of Real Property and/or other assets of the type held by the Corporation. Membership in a nationally recognized appraisalsociety such as the Appraisal Institute shall be conclusive evidence of being engaged to a substantial extent in the business of rendering opinions regarding the value of Real Property. 

 
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“Independent Director” shall mean a Director who is not on the date ofdetermination, and within the last two years from the date of determination has not been, directly or indirectly associated with the Sponsor or the Advisor by virtue of (i) ownership of an interest in the Sponsor, the Advisor or any of theirAffiliates, other than an interest in the Corporation or an interest that is not material in any other Affiliate, (ii) employment by the Sponsor, the Advisor or any of their Affiliates, (iii) service as an officer or director of theSponsor, the Advisor or any of their Affiliates, (iv) performance of services, other than as a Director, for the Corporation, (v) service as a director or trustee of more than three REITs organized by the Sponsor or advised by the Advisoror (vi) maintenance of a material business or professional relationship with the Sponsor, the Advisor or any of their Affiliates. A business or professional relationship is considered “material” if the aggregate gross income derivedby the Director from the Sponsor, the Advisor and their Affiliates exceeds 5% of either the Director’s annual gross income, derived from all sources, during either of the last two years or the Director’s net worth on a fair market valuebasis. An indirect association with the Sponsor or the Advisor shall include circumstances in which a Director’s spouse, parent, child, sibling, mother- orfather-in-law,son- or daughter-in-law orbrother- or sister-in-law is or has been associated with the Sponsor, the Advisor, any of their Affiliates or the Corporation. 

“Initial Date” shall mean the date on which Shares are first issued in the Initial PublicOffering;* provided*,* however*, that following any Restriction Termination Date, the term “Initial Date” shall mean the date on which the Corporation files, and the SDAT accepts for record, a Certificate ofNotice setting forth the determination of the Board of Directors that it is in the best interests of the Corporation to attempt to qualify or requalify as a REIT. 

“Initial Investment” shall mean that portion (i.e., $200,000) of the initial capitalization of the Corporation contributed bythe Sponsor or its Affiliates pursuant to Section II.A. of the NASAA REIT Guidelines. 

“Initial Public Offering” shallmean the first Offering pursuant to an effective registration statement filed under the Securities Act. 

“InvestedCapital” shall mean the amount calculated by multiplying the total number of Shares purchased by Stockholders by the issue price of such Shares at the time of such purchase, reduced by the portion of any Distribution that is attributable tonet sales proceeds and by any amounts paid by the Corporation to repurchase Shares pursuant to the Corporation’s plan for the repurchase of Shares. 

“Joint Ventures” shall mean those joint venture or partnership arrangements (other than the Operating Partnership) in whichthe Corporation or any of its subsidiaries is a co-venturer or partner established to acquire or hold assets of the Corporation. 

“Leverage” shall mean the aggregate amount of indebtedness of the Corporation for money borrowed (including purchase moneymortgage loans) outstanding at any time, both secured and unsecured. 

“Listing” shall mean the listing of any or all ofthe Common Shares on a national securities exchange. Upon such Listing, the Common Shares shall be deemed Listed. 

“MarketPrice” on any date shall mean, with respect to any class or series of outstanding Shares, the Closing Price for such Shares on such date. The “Closing Price” on any date shall mean the last sale price for such Shares,regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such Shares, in either case as reported in the principal consolidated transaction reporting system with respect tosecurities listed or admitted to trading on the NYSE or, if such Shares are not listed or admitted to trading on the NYSE, as reported on the principal consolidated transaction reporting system with respect to securities listed on the principalnational securities exchange on which such Shares are listed or admitted to trading or, if such Shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bidand low asked prices in the over-the-counter market, as reported by the principal automated quotation system that may then be in use or, if such Shares are not quoted byany such system, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Shares selected by the Board of Directors or, in the event that no trading price is available for such Shares, thenet asset value of such Shares as most recently disclosed by the Corporation. 

 
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“MGCL” shall mean the Maryland General Corporation Law, as amended fromtime to time. 

“Mortgages” shall mean, in connection with any mortgage financing that the Corporation makes or investsin, all of the notes, deeds of trust, security interests or other evidences of indebtedness or obligations, which are secured or collateralized by Real Property owned by the borrowers under such notes, deeds of trust, security interests or otherevidences of indebtedness or obligations. 

“NASAA REIT Guidelines” shall mean the Statement of Policy Regarding RealEstate Investment Trusts published by the North American Securities Administrators Association on May 7, 2007. 

“NetAssets” shall mean the total assets (other than intangibles) at cost, before deducting depreciation, reserves for bad debts or other non-cash reserves, less total liabilities, calculated at leastquarterly by the Corporation on a basis consistently applied. 

“Net Income” shall mean for any period, theCorporation’s total revenues applicable to such period, less the total expenses applicable to such period other than additions to, or allowances for, non-cash charges such as depreciation, amortization,impairments and reserves for bad debt or other similar non-cash reserves. If the Advisor receives an Incentive Fee pursuant to Section 8.6 hereof, Net Income, for purposes of calculating Total OperatingExpenses in Section 8.8 hereof, shall exclude any gain from the Sale of the assets of the Corporation. 

“Non-Compliant Tender Offer” shall have the meaning as provided in Section 11.7 herein. 

“NYSE” shall mean the New York Stock Exchange. 

“Offering” shall mean any offering of Shares for the account of the Corporation. 

“Operating Partnership” shall mean Starwood REIT Operating Partnership, L.P., a Delaware limited partnership, through whichthe Corporation may own assets. 

“Organization and Offering Expenses” shall mean any and all costs and expenses incurredby the Corporation and to be paid from the assets of the Corporation in connection with the formation of the Corporation and the qualification and registration of an Offering, and the marketing and distribution of Shares, including, withoutlimitation, total underwriting and brokerage discounts and commissions, costs related to investor and broker-dealer sales meetings, fees and expenses of the underwriters’ attorneys, expenses for printing, engraving, mailing, salaries ofemployees while engaged in sales activity, charges of transfer agents, registrars, trustees, escrow holders, depositaries, experts, expenses of qualification of the sale of the Shares under federal and state laws, including taxes and fees andaccountants’ and attorneys’ fees. 

“Person” shall mean an individual, corporation, partnership, limitedliability company, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code,association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other legal entity and, for purposes of Article VI herein (and all defined terms used in such Article), also includes a group as that termis used for purposes of Section 13(d)(3) of the Exchange Act and a group to which an Excepted Holder Limit applies. 

“Position Statement” shall have the meaning as provided in Section 11.7 herein. 

“Preferred Shares” shall have the meaning as provided in Section 5.1 herein. 

“Prohibited Owner” shall mean, with respect to any purported Transfer, any Person who, but for the provisions of Article VIherein, would Beneficially Own or Constructively Own Shares in violation of Section 6.1.1, and, if appropriate in the context, shall also mean any Person who would have been the record owner of Shares that the Prohibited Owner would have soowned. 

 
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“Property” or “Properties” shall mean, as the contextrequires, any, or all, respectively, of the Real Property acquired by the Corporation, directly or indirectly, including through joint venture arrangements or other partnership or investment interests. 

“Prospectus” shall mean the prospectus included in the most recent effective registration statement filed by the Corporationwith the Securities and Exchange Commission with respect to the applicable Offering, as such prospectus may be amended or supplemented from time to time. 

“Real Estate-Related Securities” shall mean equity and debt securities of both publicly traded and private companies,including REITs and pass-through entities, that own Real Property or loans secured by real estate, including investments in commercial mortgage-backed securities and derivative instruments, owned by the Corporation directly or indirectly through oneor more of its Affiliates. 

“Real Property” shall mean land, rights in land (including leasehold interests) and anybuildings, structures, improvements, furnishings, fixtures and equipment located on or used in connection with land and rights or interests in land. 

“Reinvestment Plan” shall have the meaning as provided in Section 5.10 herein. 

“Reinvestment Proceeds” shall mean, with respect to any Share issued pursuant to a Reinvestment Plan, the net asset value ofthe Corporation allocable to the Shares of such class, determined as described in the Prospectus, divided by the number of outstanding Shares of such class, at the time of issuance. 

“REIT” shall mean a corporation, trust, association or other legal entity (other than a real estate syndication) that isengaged primarily in investing in equity interests in real estate (including fee ownership and leasehold interests) or in loans secured by real estate or both as defined pursuant to the REIT Provisions of the Code. 

“REIT Provisions of the Code” shall mean Sections 856 through 860 of the Code and any successor or other provisions of theCode relating to real estate investment trusts (including provisions as to the attribution of ownership of beneficial interests therein) and the regulations promulgated thereunder. 

“Rescission Notice” shall have the meaning as provided in Section 11.7 herein. 

“Restriction Termination Date” shall mean the first day after the Initial Date on which the Board of Directors determinesthat it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT or that compliance with the restrictions and limitations on Beneficial Ownership, Constructive Ownership and Transfers of Shares set forthherein is no longer required in order for the Corporation to qualify as a REIT. 

“Roll-UpEntity” shall mean a partnership, real estate investment trust, corporation, trust or other entity that would be created or would survive after the successful completion of a proposed Roll-UpTransaction. 

“Roll-Up Transaction” shall mean a transaction involving theacquisition, merger, conversion or consolidation either directly or indirectly of the Corporation and the issuance of securities of a Roll-Up Entity to the holders of Common Shares. Such term does not include:

(a) a transaction involving securities of the Corporation that have been listed on a national securities exchange for atleast twelve months; or 

(b) a transaction involving the conversion to corporate, trust or association form of only theCorporation, if, as a consequence of the transaction, there will be no significant adverse change in any of the following: 

(i) voting rights of the holders of Common Shares; 

(ii) the term of existence of the Corporation; 

(iii) Sponsor or Advisor compensation; or 

 
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(iv) the Corporation’s investment objectives. 

“Sale” shall include any transaction or series of transactions whereby: 

(a) the Corporation or the Operating Partnership directly or indirectly (except as described in other subsections of thisdefinition) sells, grants, transfers, conveys or relinquishes its ownership of any Property or portion thereof, including the lease of any Property consisting of a building only, and including any event with respect to any Property which gives riseto a significant amount of insurance proceeds or condemnation awards; 

(b) the Corporation or the Operating Partnershipdirectly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys or relinquishes its ownership of all or substantially all of the interest of the Corporation or the Operating Partnership in anyJoint Venture in which it is a co-venturer or partner; 

(c) any Joint Venture inwhich the Corporation or the Operating Partnership is a co-venturer or partner directly or indirectly (except as described in other subsections of this definition) sells, grants, transfers, conveys orrelinquishes its ownership of any Property or portion thereof, including any event with respect to any Property which gives rise to a significant amount of insurance proceeds or condemnation awards; 

(d) the Corporation or the Operating Partnership directly or indirectly (except as described in other subsections of thisdefinition) sells, grants, conveys or relinquishes its interest in any Mortgage or Real Estate-Related Security or portion thereof, including any payments thereunder or in satisfaction thereof (other than regularly scheduled interest payments) orany amounts owed pursuant to such Mortgage or Real Estate-Related Security, and including any event with respect to any Mortgage or Real Estate-Related Security which gives rise to a significant amount of insurance proceeds or similar awards; and

(e) the Corporation or the Operating Partnership directly or indirectly (except as described in other subsections of thisdefinition) sells, grants, transfers, conveys or relinquishes its ownership of any other asset not previously described in this definition or any portion thereof. 

“SDAT” shall have the meaning as provided in Section 5.4 herein. 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time, or any successor statute thereto.Reference to any provision of the Securities Act shall mean such provision as in effect from time to time, as the same may be amended, and any successor provision thereto, as interpreted by any applicable regulations as in effect from time to time.

“Selling Commissions” shall mean any and all up-front fees and commissionspayable to underwriters, dealer managers or other broker-dealers in connection with the sale of Shares, including, without limitation, up-front fees or commissions payable to the Dealer Manager. 

“Shares” shall mean shares of stock of the Corporation of any class or series, including Common Shares or Preferred Shares.

“Soliciting Dealers” shall mean those broker-dealers that are members of the Financial Industry Regulatory Authority,Inc., or that are exempt from broker-dealer registration, and that, in either case, enter into participating broker or other agreements with the Dealer Manager to sell Shares. 

“Sponsor” shall mean any Person that (i) is directly or indirectly instrumental in organizing, wholly or in part, theCorporation or (ii) will control, manage or participate in the management of the Corporation, and any Affiliate of such Person. A Person may also be deemed a Sponsor of the Corporation by: (a) taking the initiative, directly or indirectly,in founding or organizing the Corporation, either alone or in conjunction with one or more other Persons, (b) receiving a material participation in the Corporation in connection with the founding or organizing of the business of theCorporation, in consideration of services or property, or both services and property, (c) having a substantial number of relationships and contacts with the Corporation, (d) possessing significant rights to control Properties,(e) receiving fees for providing services to the Corporation which are paid on a basis that is not customary in the industry or (f) providing goods or services to the Corporation on a basis which was not negotiated

 
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at arm’s-length with the Corporation. “Sponsor” does not include any Person whose only relationship with the Corporation is that ofan independent property manager and whose only compensation is as such, or wholly independent third parties such as attorneys, accountants and underwriters whose only compensation is for professional services. 

“Stockholder List” shall have the meaning as provided in Section 11.5 herein. 

“Stockholder Servicing Fee” shall mean the stockholder servicing fee payable to the Dealer Manager and reallowable tosoliciting dealers with respect to Class T Common Shares, Class S Common Shares, Class D Common Shares, and any other class of Common Shares for which such fee is payable, as described in the Prospectus. 

“Stockholders” shall mean the holders of record of the Shares as maintained in the books and records of the Corporation orits transfer agent. 

“Total Corporation-Level Underwriting Compensation” shall mean all underwriting compensation paid orincurred with respect to an Offering from all sources, determined pursuant to the rules and guidance of the Financial Industry Regulatory Authority, Inc., including Stockholder Servicing Fees and Selling Commissions. 

“Total Operating Expenses” shall mean all costs and expenses paid or incurred by the Corporation, as determined undergenerally accepted accounting principles, including advisory fees, but excluding: (i) the expenses of raising capital such as Organization and Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing, registration and otherfees, printing and other such expenses and taxes incurred in connection with the issuance, distribution, transfer, registration and Listing of the Shares, (ii) property level expenses incurred at each property, (iii) interest payments,(iv) taxes, (v) non-cash expenditures such as depreciation, amortization and bad debt reserves, (vi) incentive fees paid in compliance with Section 8.6, (vii) Acquisition Fees andAcquisition Expenses, (viii) real estate commissions on the Sale of Property and (ix) other fees and expenses connected with the acquisition, disposition, management and ownership of real estate interests, mortgage loans or other property(including the costs of foreclosure, insurance premiums, legal services, maintenance, repair and improvement of property). 

“Transaction Price” shall have the meaning set forth in the Prospectus. 

“Transfer” shall mean any issuance, sale, transfer, gift, assignment, devise or other disposition, as well as any other eventthat causes any Person to acquire Beneficial Ownership or Constructive Ownership of Shares or the right to vote or receive dividends on Shares, or any agreement to take any such actions or cause any such events, including (i) the granting orexercise of any option (or any disposition of any option), (ii) any disposition of any securities or rights convertible into or exchangeable for Shares or any interest in Shares or any exercise of any such conversion or exchange right and(iii) Transfers of interests in other entities that result in changes in Beneficial Ownership or Constructive Ownership of Shares; in each case, whether voluntary or involuntary, whether owned of record, Constructively Owned or BeneficiallyOwned and whether by operation of law or otherwise. The terms “Transferring” and “Transferred” shall have the correlative meanings. 

“2%/25% Guidelines” shall have the meaning as provided in Section 8.8 herein. 

“Unimproved Real Property” shall mean Property (i) in which the Corporation has an equity interest that was not acquiredfor the purpose of producing rental or other operating income, (ii) that has no development or construction in process and (iii) for which no development or construction is planned, in good faith, to commence within one year. 

**ARTICLE V**

**STOCK**

**Section******** 5.1 Authorized Shares.** The Corporation has authority to issue 1,100,000,000 Shares, consistingof 1,000,000,000 shares of common stock, $0.01 par value per share (the “Common Shares”), 250,000,000 of which 

 
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are classified as Class T common stock (the “Class T Common Shares”), 250,000,000 of which are classified as Class S common stock (the“Class S Common Shares”), 250,000,000 of which are classified as Class D common stock (the “Class D Common Shares”) and 250,000,000 of which are classified as Class Icommon stock (the “Class I Common Shares”), and 100,000,000 shares of preferred stock, $0.01 par value per share (the “Preferred Shares”). The aggregate par value of all authorized Shares havingpar value is $11,000,000. All Shares shall be fully paid and non-assessable when issued. The Board may classify or reclassify any unissued Common Shares from time to time into one or more classes or series ofShares. If Shares of one class are classified or reclassified into Shares of another class pursuant to this Article V, the number of authorized Shares of the former class shall be automatically decreased and the number of Shares of the latter classshall be automatically increased, in each case by the number of Shares so classified or reclassified, so that the aggregate number of Shares of all classes that the Corporation has authority to issue shall not be more than the total number of Sharesset forth in the first sentence of this paragraph. The Board of Directors, with the approval of a majority of the entire Board and without any action by the Stockholders, may amend the Charter from time to time to increase or decrease the aggregatenumber of Shares or the number of Shares of any class or series that the Corporation has authority to issue. 

**Section 5.2 CommonShares.**

***Section************ 5.2.1 Common Shares Subject to Terms of Preferred Shares.*** TheCommon Shares shall be subject to the express terms of any series of Preferred Shares. 

***Section************ 5.2.2 Voting Rights.*** Subject to the provisions of Article VI and except as mayotherwise be specified in the Charter, each Common Share shall entitle the holder thereof to one vote per share on all matters upon which Stockholders are entitled to vote pursuant to Section 11.2 hereof. Except as may be provided otherwise inthe Charter, and subject to the express terms of any series of Preferred Shares, the holders of the Common Shares shall have the exclusive right to vote on all matters (as to which a common stockholder shall be entitled to vote pursuant toapplicable law) at all meetings of the Stockholders. The holders of Common Shares shall vote together as a single class on all actions to be taken by the Stockholders; provided, however, that with respect to (a) any amendment of the Charterthat would materially and adversely affect the rights, preferences and privileges of only a particular class of Common Shares, (b) any matter submitted to Stockholders that relates solely to a particular class of Common Shares or (c) anymatter submitted to Stockholders in which the interests of a particular class of Common Shares differ from the interests of all other classes of Common Shares, only the affirmative vote of the holders of a majority of such affected class of CommonShares, with no other class of Common Shares voting except such affected class of Common Shares voting as a separate class, shall be required. 

***Section************ 5.2.3 Conversion of Class************ T Common Shares,Class************ S Common Shares and Class************ D Common Shares.*** Each Class T Common Share, Class S Common Share and Class D Common Share held in a Stockholder’saccount shall automatically and without any action on the part of the holder thereof convert into a number of Class I Common Shares equal to the Class T Conversion Rate, Class S Conversion Rate or Class D Conversion Rate,respectively, on the earliest of (a) a Listing of Class I Common Shares, (b) a merger or consolidation of the Corporation with or into another entity or the sale or other disposition of all or substantially all of theCorporation’s assets, in each case in a transaction in which the Stockholders receive cash or securities listed on a national securities exchange (c) the end of the month in which the Dealer Manager in conjunction with theCorporation’s transfer agent determines that total Selling Commissions and Stockholder Servicing Fees paid with respect to the Shares held by such Stockholder within such account would exceed, in the aggregate, 8.75% of the sum of theGross Proceeds from the sale of such Shares and the aggregate Reinvestment Proceeds of any Shares issued under a Reinvestment Plan with respect to such Shares (or, solely with respect to the Class T Common Shares, a lower limit as set forth inthe applicable agreement between the Dealer Manager and a Soliciting Dealer at the time such Class T Common Shares were issued), and (d) after termination of the primary portion of the Offering in which such Class T Common Shares,Class S Common Shares and Class D Common Shares were sold, the end of the month in which the Corporation, with the assistance of the Dealer Manager, determines that Total Corporation-Level Underwriting Compensation paid with respect tosuch Offering is equal to ten percent of the Gross Proceeds of the primary portion of such Offering. 

***Section************ 5.2.4 Rights Upon Liquidation.*** In the event of any voluntary or involuntaryliquidation, dissolution or winding up, or any Distribution of the assets of the Corporation, the aggregate assets of the Corporation available for Distribution to holders of the Common Shares shall be determined in accordance with

 
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applicable law. Immediately before any liquidation, dissolution or winding up, or any distribution of the assets of the Corporation pursuant to a plan of liquidation, dissolution or winding up,Class T Common Shares will automatically convert to Class I Common Shares at the Class T Conversion Rate, Class S Common Shares will automatically convert to Class I Common Shares at the Class S Conversion Rate andClass D Common Shares will automatically convert to Class I Common Shares at the Class D Conversion Rate. Following such conversion, the aggregate assets of the Corporation available for Distribution to holders of the Common Shares,or the proceeds therefrom, shall be distributed to each holder of Class I Common Shares, ratably with each other holder of Class I Common Shares, which will include all converted Class T Common Shares, Class S Common Shares andClass D Common Shares, in such proportion as the number of outstanding Class I Common Shares held by such holder bears to the total number of outstanding Class I Common Shares then outstanding. 

**Section******** 5.3 Preferred Shares.** The Board may classify any unissued Preferred Shares and reclassify anypreviously classified but unissued Preferred Shares of any series from time to time, into one or more classes or series of Shares;* provided*,* however*, that the voting rights per Share (other than any publicly held Share) soldin a private offering shall not exceed the voting rights which bear the same relationship to the voting rights of a publicly held Share as the consideration paid to the Corporation for each privately offered Share bears to the book value of eachoutstanding publicly held Share. 

**Section******** 5.4 Classified or Reclassified Shares.** Prior to the issuance ofclassified or reclassified Shares of any class or series, the Board by resolution shall: (a) designate that class or series to distinguish it from all other classes and series of Shares; (b) specify the number of Shares to be included inthe class or series; (c) set or change, subject to the provisions of Article VI and subject to the express terms of any class or series of Shares outstanding at the time, the preferences, conversion or other rights, voting powers, restrictions,limitations as to dividends or other Distributions, qualifications and terms and conditions of redemption for each class or series; and (d) cause the Corporation to file articles supplementary with the State Department of Assessments andTaxation of Maryland (“SDAT”). Any of the terms of any class or series of Shares set or changed pursuant to Section 5.4(c) may be made dependent upon facts or events ascertainable outside the Charter (including determinations by theBoard or other facts or events within the control of the Corporation) and may vary among holders thereof, provided that the manner in which such facts, events or variations shall operate upon the terms of such class or series of Shares is clearlyand expressly set forth in the articles supplementary or other charter document. 

**Section******** 5.5Distributions.** The Board of Directors may from time to time authorize the Corporation to declare and pay to Stockholders such dividends or other Distributions in cash or other assets of the Corporation or in securities of the Corporation,including in Shares of one class payable to holders of Shares of another class, or from any other source as the Board of Directors in its discretion shall determine. The Board of Directors shall endeavor to authorize the Corporation to declare andpay such dividends and other Distributions as shall be necessary for the Corporation to qualify as a REIT under the Code;* provided*,* however*, Stockholders shall have no right to any dividend or other Distribution unless anduntil authorized by the Board and declared by the Corporation. The exercise of the powers and rights of the Board of Directors pursuant to this Section 5.5 shall be subject to the provisions of any class or series of Shares at the timeoutstanding. The receipt by any Person in whose name any Shares are registered on the records of the Corporation or by his or her duly authorized agent shall be a sufficient discharge for all dividends or other Distributions payable or deliverablein respect of such Shares and from all liability to see to the application thereof. Distributions in kind shall not be permitted, except for distributions of readily marketable securities, distributions of beneficial interests in a liquidating trustestablished for the dissolution of the Corporation and the liquidation of its assets in accordance with the terms of the Charter or distributions of in-kind property in which (a) the Board advises eachStockholder of the risks associated with direct ownership of the property, (b) the Board offers each Stockholder the election of receiving such in-kind property distributions and (c) in-kind property distributions are made only to those Stockholders that accept such offer.****

Other than Distributions pursuant to a program or programs by which the Corporation voluntarily repurchases shares from its Stockholders orpursuant to Article VI, each Stockholder of a class or series of Shares shall be treated the same with respect to Distributions as every other Stockholder of that class or series. 

**Section******** 5.6 Charter and Bylaws.** The rights of all Stockholders and the terms of all Shares are subject to theprovisions of the Charter and the Bylaws. 

 
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**Section******** 5.7 No Issuance of Share Certificates.** Unlessotherwise provided by the Board of Directors, the Corporation shall not issue stock certificates. A Stockholder’s investment shall be recorded on the books of the Corporation. To transfer his or her Shares, a Stockholder shall submit anexecuted form to the Corporation, which form shall be provided by the Corporation upon request. Such transfer will also be recorded on the books of the Corporation. Upon issuance or transfer of Shares, the Corporation will provide the Stockholderwith information concerning his or her rights with regard to such Shares, as required by the Bylaws and the MGCL or other applicable law. 

**Section******** 5.8 Suitability of Stockholders.** Upon the Commencement of the Initial Public Offering and untilListing, the following provisions shall apply: 

***Section************ 5.8.1 Investor SuitabilityStandards.*** Subject to suitability standards established by individual states, to purchase Common Shares, if such prospective Stockholder is an individual (including an individual beneficiary of a purchasing individual retirementaccount), or if the prospective Stockholder is a fiduciary (such as a trustee of a trust or corporate pension or profit sharing plan, or other tax-exempt organization, or a custodian under a Uniform Gifts toMinors Act), such individual or fiduciary, as the case may be, must represent to the Corporation, among other requirements as the Corporation may require from time to time: 

(a) that such individual (or, in the case of a fiduciary, that the fiduciary account or the donor who directly or indirectlysupplies the funds to purchase the Shares) has a minimum annual gross income of $70,000 and a net worth (excluding home, furnishings and automobiles) of not less than $70,000; or 

(b) that such individual (or, in the case of a fiduciary, that the fiduciary account or the donor who directly or indirectlysupplies the funds to purchase the Shares) has a net worth (excluding home, furnishings and automobiles) of not less than $250,000. 

***Section************ 5.8.2 Determination of Suitability of Sale.*** The Sponsor and each Person sellingCommon Shares on behalf of the Corporation and each broker or dealer or registered investment adviser recommending the purchase of Shares to a customer shall make every reasonable effort to determine that the purchase of Common Shares by aStockholder is a suitable and appropriate investment for such Stockholder. In making this determination, the Sponsor or each Person selling Common Shares on behalf of the Corporation, or each broker or dealer or registered investment adviserrecommending the purchase of Shares to a customer shall ascertain that the prospective Stockholder: (a) meets the minimum income and net worth standards established for purchasing Common Shares; (b) can reasonably benefit from aninvestment in Common Shares based on the prospective Stockholder’s overall investment objectives and portfolio structure; (c) is able to bear the economic risk of the investment based on the prospective Stockholder’s overall financialsituation; and (d) has apparent understanding of (i) the fundamental risks of the investment; (ii) the risk that the Stockholder may lose the entire investment; (iii) the lack of liquidity of the Common Shares; (iv) therestrictions on transferability of the Common Shares; and (v) the tax consequences of the investment. 

The Sponsor or each Personselling Common Shares on behalf of the Corporation, or each broker or dealer or registered investment adviser recommending the purchase of Shares to a customer shall make this determination with respect to each prospective Stockholder on the basisof information it has obtained from or on behalf of such prospective Stockholder, including information indirectly obtained from a prospective stockholder through such stockholder’s investment adviser, financial advisor or bank acting as afiduciary. Relevant information for this purpose will include at least the age, investment objectives, investment experiences, income, net worth, financial situation and other investments of the prospective Stockholder, as well as any otherpertinent factors. 

The Sponsor or each Person selling Common Shares on behalf of the Corporation, or each broker or dealer or registeredinvestment adviser recommending the purchase of Shares to a customer shall maintain records of the information used to determine that an investment in Common Shares is suitable and appropriate for a Stockholder. The Sponsor or each Person sellingCommon Shares on behalf of the Corporation, or each broker or dealer or registered investment adviser recommending the purchase of Shares to a customer shall maintain these records for at least six years. 

The Sponsor and each Person selling shares on behalf of the Corporation may each rely upon the following in satisfying its obligations underthis Section 5.8.2: (i) the Person directly recommending the purchase of 

 
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Common Shares to a customer if that Person is a FINRA member broker or dealer that has entered into a selling agreement with the Sponsor or the Corporation or their Affiliates or (ii) aregistered investment adviser that has entered into an agreement with the Sponsor or the Corporation or their Affiliates. 

***Section************ 5.8.3 Minimum Investment and Transfer.*** Subject to certain individual staterequirements and except with respect to the issuance of Common Shares under the Reinvestment Plan, no initial sale or transfer of Common Shares for value of less than $2,500, or such other amount as determined by the Board, will be permitted. 

**Section******** 5.9 Repurchase of Shares.** The Board may establish, from time to time, a program or programs by whichthe Corporation voluntarily repurchases Shares from its Stockholders;* provided*,* however*, that such repurchase does not impair the capital or operations of the Corporation. Neither the Sponsor, the Advisor, any member of theBoard or any Affiliate thereof may receive any fees arising out of the repurchase of Shares by the Corporation. 

**Section******** 5.10 Distribution Reinvestment Plans.** The Board may establish, from time to time, a Distributionreinvestment plan or plans (each, a “Reinvestment Plan”). Under any such Reinvestment Plan, (a) all material information regarding Distributions to the holders of Common Shares and the effect of reinvesting such Distributions,including the tax consequences thereof, shall be provided to the holders of Common Shares not less often than annually, and (b) each holder of Common Shares participating in such Reinvestment Plan shall have a reasonable opportunity to withdrawfrom the Reinvestment Plan not less often than annually after receipt of the information required in clause (a) above. 

**ARTICLE VI**

**RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES**

**Section 6.1 Shares.**

***Section************ 6.1.1 Ownership Limitations.*** During the period commencing on the Initial Date andprior to the Restriction Termination Date, but subject to Section 6.3: 

(a) Basic Restrictions. 

(i) (1) No Person, other than an Excepted Holder, shall Beneficially Own or Constructively Own Shares in excess of theAggregate Share Ownership Limit, (2) no Person, other than an Excepted Holder, shall Beneficially Own or Constructively Own Common Shares in excess of the Common Share Ownership Limit and (3) no Excepted Holder shall Beneficially Own orConstructively Own Shares in excess of the Excepted Holder Limit for such Excepted Holder. 

(ii) No Person shallBeneficially Own or Constructively Own Shares to the extent that such Beneficial Ownership or Constructive Ownership of Shares would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code(without regard to whether the ownership interest is held during the last half of a taxable year), or otherwise failing to qualify as a REIT (including, but not limited to, Beneficial Ownership or Constructive Ownership that would result in theCorporation owning (actually or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to satisfy any of thegross income requirements of Section 856(c) of the Code). 

(iii) Any Transfer of Shares that, if effective, wouldresult in Shares being beneficially owned by fewer than 100 Persons (determined under the principles of Section 856(a)(5) of the Code) shall be void ab initio, and the intended transferee shall acquire no rights in such Shares. 

(b) Transfer in Trust. If any Transfer of Shares occurs which, if effective, would result in any PersonBeneficially Owning or Constructively Owning Shares in violation of Section 6.1.1(a)(i) or (ii), 

 
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(i) then that number of Shares the Beneficial Ownership or ConstructiveOwnership of which otherwise would cause such Person to violate Section 6.1.1(a)(i) or (ii) (rounded up to the nearest whole share) shall be automatically Transferred to a Charitable Trust for the benefit of a Charitable Beneficiary, asdescribed in Section 6.2, effective as of the close of business on the Business Day prior to the date of such Transfer, and such Person shall acquire no rights in such Shares; or 

(ii) if the Transfer to the Charitable Trust described in clause (i) of this sentence would not be effective for anyreason to prevent the violation of Section 6.1.1(a)(i) or (ii), then the Transfer of that number of Shares that otherwise would cause any Person to violate Section 6.1.1(a)(i) or (ii) shall be void ab initio, and the intendedtransferee shall acquire no rights in such Shares. 

To the extent that, upon a transfer of Shares pursuant to this Section 6.1.1(b),a violation of any provision of this Article VI would nonetheless be continuing (for example where the ownership of Shares by a single Charitable Trust would violate the 100 stockholder requirement applicable to REITs), then Shares shall betransferred to that number of Charitable Trusts, each having a distinct Charitable Trustee and a Charitable Beneficiary or Beneficiaries that are distinct from those of each other Charitable Trust, such that there is no violation of any provision ofthis Article VI. 

***Section************ 6.1.2 Remedies for Breach.*** If the Board of Directors or itsdesignee (including any duly authorized committee of the Board) shall at any time determine that a Transfer or other event has taken place that results in a violation of Section 6.1.1 or that a Person intends to acquire or has attempted toacquire Beneficial Ownership or Constructive Ownership of any Shares in violation of Section 6.1.1 (whether or not such violation is intended), the Board of Directors or its designee shall take such action as it deems advisable to refuse togive effect to or to prevent such Transfer or other event, including, without limitation, causing the Corporation to redeem Shares, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin suchTransfer or other event;* provided*,* however*, that any Transfers or attempted Transfers or other events in violation of Section 6.1.1 shall automatically result in the Transfer to the Charitable Trust described above, and,where applicable, such Transfer (or other event) shall be void ab initio as provided above irrespective of any action (or non-action) by the Board of Directors or its designee. 

***Section************ 6.1.3 Notice of Restricted Transfer.*** Any Person who acquires or attempts orintends to acquire Beneficial Ownership or Constructive Ownership of Shares that will or may violate Section 6.1.1(a), or any Person who would have owned Shares that resulted in a Transfer to the Charitable Trust pursuant to the provisions ofSection 6.1.1(b), shall immediately give written notice to the Corporation of such event, or in the case of such a proposed or attempted transaction, give at least 15 days prior written notice, and shall provide to the Corporation such otherinformation as the Corporation may request in order to determine the effect, if any, of such Transfer on the Corporation’s status as a REIT. 

***Section************ 6.1.4 Owners Required To Provide Information.*** From the Initial Date and prior tothe Restriction Termination Date: 

(a) every owner of more than five percent (or such lower percentage as required by theCode or the Treasury regulations promulgated thereunder or as otherwise required by the Board of Directors) of the outstanding Shares, within 30 days after the end of each taxable year, shall give written notice to the Corporation stating the nameand address of such owner, the number of Shares Beneficially Owned and a description of the manner in which such Shares are held. Each such owner shall provide to the Corporation such additional information as the Corporation may request in order todetermine the effect, if any, of such Beneficial Ownership on the Corporation’s status as a REIT and to ensure compliance with the Aggregate Share Ownership Limit, the Common Share Ownership Limit and the other restrictions set forth herein;and 

(b) each Person who is a Beneficial or Constructive Owner of Shares and each Person (including the Stockholder ofrecord) who is holding Shares for a Beneficial or Constructive Owner shall provide to the Corporation such information as the Corporation may request, in order to determine the Corporation’s status as a REIT and to comply with requirements ofany taxing authority or governmental authority or to determine such compliance. 

 
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***Section************ 6.1.5 Remedies NotLimited.*** Subject to Section 7.10 of the Charter, nothing contained in this Section 6.1 shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporationand the interests of its Stockholders in preserving the Corporation’s status as a REIT. 

***Section************ 6.1.6 Ambiguity.*** In the case of an ambiguity in the application of any of theprovisions of this Section 6.1, Section 6.2 or any definition contained in Article IV, the Board of Directors may determine the application of the provisions of this Section 6.1 or Section 6.2 with respect to any situation basedon the facts known to it. In the event Section 6.1 or 6.2 requires an action by the Board of Directors and the Charter fails to provide specific guidance with respect to such action, the Board of Directors may determine the action to be takenso long as such action is not contrary to the provisions of Article IV or Sections 6.1 or 6.2. Absent a decision to the contrary by the Board of Directors (which the Board may make in its sole and absolute discretion), if a Person would have (butfor the remedies set forth in Section 6.1.2) acquired Beneficial Ownership or Constructive Ownership of Shares in violation of Section 6.1.1, such remedies (as applicable) shall apply first to the Shares which, but for such remedies, wouldhave been Beneficially Owned or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such Shares based upon the relative number of the Shares held by each such Person. 

***Section 6.1.7 Exceptions.***

(a) Subject to Section 6.1.1(a)(ii), the Board of Directors may exempt (prospectively or retroactively) a Person from the Aggregate ShareOwnership Limit and the Common Share Ownership Limit, as the case may be, and may establish or increase an Excepted Holder Limit for such Person if: 

(i) the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary for theBoard to ascertain that no individual’s Beneficial Ownership or Constructive Ownership of such Shares will violate Section 6.1.1(a)(ii); 

(ii) such Person does not and represents that it will not own, actually or Constructively, an interest in a tenant of theCorporation (or a tenant of any entity owned or controlled by the Corporation) that would cause the Corporation to own, actually or Constructively, more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant andthe Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact (for this purpose, a tenant from whom the Corporation (or an entity owned or controlled by the Corporation)derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the judgment of the Board of Directors, rent from such tenant would not adversely affect the Corporation’s ability to qualify as a REIT, shallnot be treated as a tenant of the Corporation); and 

(iii) such Person agrees that any violation or attempted violation ofsuch representations or undertakings (or other action which is contrary to the restrictions contained in Sections 6.1.1 through 6.1.6) will result in such Shares being automatically Transferred to a Charitable Trust in accordance with Sections6.1.1(b) and 6.2. 

(b) Prior to granting any exception pursuant to Section 6.1.7(a), the Board of Directors may require a ruling fromthe Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’sstatus as a REIT. Notwithstanding the receipt of any ruling or opinion, the Board of Directors may impose such conditions or restrictions as it deems appropriate in connection with granting such exception. 

(c) Subject to Section 6.1.1(a)(ii), an underwriter which participates in a public offering or a private placement of Shares (orsecurities convertible into or exchangeable for Shares) may Beneficially Own or Constructively Own Shares (or securities convertible into or exchangeable for Shares) in excess of the Aggregate Share Ownership Limit, the Common Share Ownership Limitor both such limits, but only to the extent necessary to facilitate such public offering or private placement. 

(d) The Board of Directorsmay only reduce the Excepted Holder Limit for an Excepted Holder: (i) with the written consent of such Excepted Holder at any time, or (ii) pursuant to the terms and conditions of the 

 
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agreements and undertakings entered into with such Excepted Holder in connection with the establishment of the Excepted Holder Limit for that Excepted Holder. No Excepted Holder Limit shall bereduced to a percentage that is less than the Common Share Ownership Limit. 

***Section************ 6.1.8 Increaseor Decrease in Aggregate Share Ownership and Common Share Ownership Limits.*** Subject to Section 6.1.1(a)(ii), the Board of Directors may from time to time increase or decrease the Common Share Ownership Limit and the Aggregate ShareOwnership Limit for one or more Persons and increase or decrease the Common Share Ownership Limit and the Aggregate Share Ownership Limit for all other Persons. No decreased Common Share Ownership Limit and/or Aggregate Share Ownership Limit will beeffective for any Person whose percentage of ownership in Shares is in excess of such decreased Common Share Ownership Limit and/or Aggregate Share Ownership Limit, as applicable, until such time as such Person’s percentage of ownership inShares equals or falls below the decreased Common Share Ownership Limit and/or Aggregate Share Ownership Limit, but any further acquisition of Shares in excess of such percentage ownership of Shares will be in violation of the Common Share OwnershipLimit and/or Aggregate Share Ownership Limit and, provided further, that the new Common Share Ownership Limit and/or Aggregate Share Ownership Limit would not allow five or fewer Persons to Beneficially Own more than 49.8% in value of theoutstanding Shares. 

***Section************ 6.1.9 Legend.*** Any certificate representing Shares shallbear substantially the following legend: 

The Shares represented by this certificate are subject to restrictions on Beneficial andConstructive Ownership and Transfer for the purpose, among others, of the Corporation’s maintenance of its status as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the“Code”). Subject to certain further restrictions and except as expressly provided in the Corporation’s charter, (i) no Person may Beneficially Own or Constructively Own Common Shares in excess of 9.8% (in value or numberof Common Shares) of the outstanding Common Shares unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (ii) no Person may Beneficially Own or Constructively Own Shares in excess of 9.8% (invalue or number of shares) of the total outstanding Shares, unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (iii) no Person may Beneficially Own or Constructively Own Shares that wouldresult in the Corporation being “closely held” under Section 856(h) of the Code or otherwise cause the Corporation to fail to qualify as a REIT; and (iv) any Transfer of Shares that, if effective, would result in Shares beingbeneficially owned by fewer than 100 Persons (as determined under the principles of Section 856(a)(5) of the Code) shall be void ab initio, and the intended transferee shall acquire no rights in such Shares. Any Person whoBeneficially Own or Constructively Owns or attempts to Beneficially Own or Constructively Own Shares which cause or will cause a Person to Beneficially Own or Constructively Own Shares in excess or in violation of the above limitations mustimmediately notify the Corporation in writing (or, in the case of an attempted transaction, give at least 15 days prior written notice). If any of the restrictions on Transfer or ownership as set forth in (i), (ii) or (iii) above areviolated, the Shares in excess or in violation of the above limitations will be automatically Transferred to a Charitable Trust for the benefit of one or more Charitable Beneficiaries. In addition, the Corporation may redeem Shares upon the termsand conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certainevents, attempted Transfers in violation of the restrictions described in (i), (ii) or (iii) above may be void ab initio. 

Until such time as the Common Shares are listed on a national securities exchange, to purchase Common Shares, if such prospective Stockholderis an individual (including an individual beneficiary of a purchasing individual retirement account), or if the prospective Stockholder is a fiduciary (such as a trustee of a trust or corporate pension or profit sharing plan, or other tax-exempt organization, or a custodian under a Uniform Gifts to Minors Act), such individual or fiduciary, as the case may be, must represent to the Corporation, among other requirements as the Corporation mayrequire from time to time: 

(a) that such individual (or, in the case of a fiduciary, that the fiduciary account or thedonor who directly or indirectly supplies the funds to purchase the Common Shares) has a minimum annual gross income of $70,000 and a net worth (excluding home, furnishings and automobiles) of not less than $70,000; or 

(b) that such individual (or, in the case of a fiduciary, that the fiduciary account or the donor who directly or indirectlysupplies the funds to purchase the Common Shares) has a net worth (excluding home, 

 
16 

furnishings and automobiles) of not less than $250,000. Subject to certain individual state requirements and except with respect to the issuance of Common Shares under the Reinvestment Plan, notransfer of Common Shares for value of less than $2,500, or such other amount as determined by the Board, will be permitted. 

Allcapitalized terms in this legend have the meanings defined in the Corporation’s charter, as the same may be amended from time to time, a copy of which, including the restrictions on Transfer and ownership, will be furnished to each holder ofShares on request and without charge. Requests for such a copy may be directed to the Secretary of the Corporation at its principal office. 

Instead of the foregoing legend, the certificate may state that the Corporation will furnish a full statement about certain restrictions ontransferability to a Stockholder on request and without charge. In the case of uncertificated Shares, the Corporation will send the holder of such Shares, on request and without charge, a written statement of the information otherwise required oncertificates. 

**Section 6.2 Transfer of Shares in Trust.**

***Section************ 6.2.1 Ownership in Trust.*** Upon any purported Transfer or other event described inSection 6.1.1(b) that would result in a Transfer of Shares to a Charitable Trust, such Shares shall be deemed to have been Transferred to the Charitable Trustee as trustee of a Charitable Trust for the exclusive benefit of one or moreCharitable Beneficiaries. Such Transfer to the Charitable Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported Transfer or other event that results in the Transfer to the Charitable Trustpursuant to Section 6.1.1(b). The Charitable Trustee shall be appointed by the Corporation and shall be a Person unaffiliated with the Corporation and any Prohibited Owner. Each Charitable Beneficiary shall be designated by the Corporation asprovided in Section 6.2.6. 

***Section************ 6.2.2 Status of Shares Held by the CharitableTrustee.*** Shares held by the Charitable Trustee shall continue to be issued and outstanding Shares. The Prohibited Owner shall have no rights in the Shares held by the Charitable Trustee. The Prohibited Owner shall not benefiteconomically from ownership of any Shares held in trust by the Charitable Trustee, shall have no rights to dividends or other Distributions and shall not possess any rights to vote or other rights attributable to the Shares held in the CharitableTrust. 

***Section************ 6.2.3 Dividend and Voting Rights.*** The Charitable Trustee shall haveall voting rights and rights to dividends or other Distributions with respect to Shares held in the Charitable Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend or other Distribution paidprior to the discovery by the Corporation that Shares have been Transferred to the Charitable Trustee shall be paid by the recipient of such dividend or other Distribution to the Charitable Trustee upon demand and any dividend or other Distributionauthorized but unpaid shall be paid when due to the Charitable Trustee. Any dividends or other Distributions so paid over to the Charitable Trustee shall be held in trust for the Charitable Beneficiary. The Prohibited Owner shall have no votingrights with respect to Shares held in the Charitable Trust and, subject to Maryland law, effective as of the date that Shares have been Transferred to the Charitable Trustee, the Charitable Trustee shall have the authority (at the CharitableTrustee’s sole discretion) (a) to rescind as void any vote cast by a Prohibited Owner prior to the discovery by the Corporation that Shares have been Transferred to the Charitable Trustee and (b) to recast such vote in accordance withthe desires of the Charitable Trustee acting for the benefit of the Charitable Beneficiary;* provided*,* however*, that if the Corporation has already taken irreversible corporate action, then the Charitable Trustee shall nothave the authority to rescind and recast such vote. Notwithstanding the provisions of this Article VI, until the Corporation has received notification that Shares have been Transferred into a Charitable Trust, the Corporation shall be entitled torely on its share transfer and other Stockholder records for purposes of preparing lists of Stockholders entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes and determining the other rightsof Stockholders. 

***Section************ 6.2.4 Sale of Shares by Charitable Trustee.*** Within 20 daysof receiving notice from the Corporation that Shares have been Transferred to the Charitable Trust, the Charitable Trustee shall sell the Shares held in the Charitable Trust to a Person, designated by the Charitable Trustee, whose ownership of theShares will not violate the ownership limitations set forth in Section 6.1.1(a). Upon such sale, the interest of the Charitable Beneficiary in the Shares sold shall terminate and the Charitable Trustee shall distribute the net proceeds of thesale to the Prohibited Owner and to the Charitable Beneficiary as provided in this Section 6.2.4. The Prohibited Owner 

 
17 

shall receive the lesser of (a) the price paid by the Prohibited Owner for the Shares or, if the Prohibited Owner did not give value for the Shares in connection with the event causing theShares to be held in the Charitable Trust (*e.g.*, in the case of a gift, devise or other such transaction), the Market Price of the Shares on the day of the event causing the Shares to be held in the Charitable Trust and (b) the price pershare received by the Charitable Trustee (net of any commissions and other expenses of sale) from the sale or other disposition of the Shares held in the Charitable Trust. The Charitable Trustee may reduce the amount payable to the Prohibited Ownerby the amount of dividends and other Distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Charitable Trustee pursuant to Section 6.2.3 of this Article VI. Any net sales proceeds in excess of theamount payable to the Prohibited Owner shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Corporation that Shares have been Transferred to the Charitable Trustee, such Shares are sold by a Prohibited Owner,then (i) such Shares shall be deemed to have been sold on behalf of the Charitable Trust and (ii) to the extent that the Prohibited Owner received an amount for such Shares that exceeds the amount that such Prohibited Owner was entitled toreceive pursuant to this Section 6.2.4, such excess shall be paid to the Charitable Trustee upon demand. 

***Section************ 6.2.5 Purchase Right in Shares Transferred to the Charitable Trustee.*** SharesTransferred to the Charitable Trustee shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per Share equal to the lesser of (a) the price per Share in the transaction that resulted in such Transfer tothe Charitable Trust (or, in the case of a devise or gift, the Market Price at the time of such devise or gift) and (b) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right toaccept such offer until the Charitable Trustee has sold the Shares held in the Charitable Trust pursuant to Section 6.2.4. Upon such a sale to the Corporation, the interest of the Charitable Beneficiary in the Shares sold shall terminate andthe Charitable Trustee shall distribute the net proceeds of the sale to the Prohibited Owner. The Corporation may reduce the amount payable to the Prohibited Owner by the amount of dividends and other Distributions which have been paid to theProhibited Owner and are owed by the Prohibited Owner to the Charitable Trustee pursuant to Section 6.2.3 of this Article VI. The Corporation may pay the amount of such reduction to the Charitable Trustee for the benefit of the CharitableBeneficiary. 

***Section************ 6.2.6 Designation of Charitable Beneficiaries.*** By written noticeto the Charitable Trustee, the Corporation shall designate one or more nonprofit organizations to be the Charitable Beneficiary of the interest in the Charitable Trust such that (a) Shares held in the Charitable Trust would not violate therestrictions set forth in Section 6.1.1(a) in the hands of such Charitable Beneficiary and (b) each such organization must be described in Section 501(c)(3) of the Code and contributions to each such organization must be eligible fordeduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code. 

**Section******** 6.3 NYSETransactions.** Nothing in this Article VI shall preclude the settlement of any transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system. The fact thatthe settlement of any transaction occurs shall not negate the effect of any other provision of this Article VI and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article VI. 

**Section******** 6.4 Enforcement.** The Corporation is authorized specifically to seek equitable relief, includinginjunctive relief, to enforce the provisions of this Article VI. 

**Section******** 6.5Non-Waiver.** No delay or failure on the part of the Corporation or the Board of Directors in exercising any right hereunder shall operate as a waiver of any right of the Corporation or the Board ofDirectors, as the case may be, except to the extent specifically waived in writing. 

**ARTICLE VII**

**PROVISIONS FOR DEFINING, LIMITING**

**AND REGULATING CERTAIN POWERS OF THE**

**CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS**

 
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**Section******** 7.1 Number 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 (the “Directors”) shall be nine, which number may be increased or decreased from time to time pursuant to theBylaws;* provided*,* however*, that the total number of Directors shall not be fewer than three. Upon Commencement of the Initial Public Offering and until Listing (if any), a majority of the Directors shall be IndependentDirectors except for a period of up to 60 days after the death, removal or resignation of an Independent Director pending the election of such Independent Director’s successor. The names of the current Directors who shall serve untilthe next annual meeting of Stockholders and until their successors are duly elected and qualify are:

Barry S. Sternlicht 

Richard Bronson 

Mark Deason 

Christopher Graham 

David Henry

Robin Josephs 

John McCarthy

Dale Anne Reiss 

James Walker

These Directors may increase the number of Directors and fill any vacancy, whether resulting from an increase in the number of Directorsor otherwise, on the Board of Directors prior to the first annual meeting of Stockholders in the manner provided in the Bylaws. 

TheCorporation elects, at such time as it becomes eligible to make the election provided for under Section 3-804(c) of the MGCL, that, except as may be provided by the Board of Directors in setting the termsof any class or series of Preferred Shares, any and all vacancies on the Board of Directors may be filled only by the affirmative vote of a majority of the remaining Directors in office, even if the remaining Directors do not constitute a quorum,and any Director elected to fill a vacancy shall serve for the remainder of the full term of the directorship in which such vacancy occurred and until a successor is elected and qualifies. Notwithstanding the foregoing sentence, if any remainingdirectors are Independent Directors, only Independent Directors shall nominate replacements for vacancies among the Independent Directors’ positions. 

**Section******** 7.2 Experience.** Each Director shall have at least three years of relevant experience demonstrating theknowledge and experience required to successfully acquire and manage the type of assets being acquired by the Corporation. At least one of the Independent Directors shall have at least three years of relevant real estate experience. 

**Section******** 7.3 Committees.** The Board may establish such committees as it deems appropriate, in its discretion,provided that the majority of the members of each committee are Independent Directors. 

**Section******** 7.4Term.** Except as may otherwise be provided in the terms of any Preferred Shares issued by the Corporation with respect to the termination after less than one year of the term of office of any Director elected by the holders of such PreferredShares, each Director shall hold office for one year, until the next annual meeting of Stockholders and until his or her successor is duly elected and qualifies. Directors may be elected to an unlimited number of successive terms. 

**Section******** 7.5 Fiduciary Obligations.** The Directors serve in a fiduciary capacity to the Corporation and have afiduciary duty to the Stockholders, including a fiduciary duty to the Stockholders to supervise the relationship of the Corporation with the Advisor. 

**Section******** 7.6 Extraordinary Actions.** Notwithstanding any provision of law permitting or requiring any action tobe taken or approved by the affirmative vote of the holders of Shares entitled to cast a greater number of votes, any such action shall be effective and valid if declared advisable by the Board of Directors and taken or approved by the affirmativevote of holders of Shares entitled to cast a majority of all the votes entitled to be cast on the matter. 

**Section******** 7.7 Authorization by Board of Stock Issuance.** The Board of Directors may authorize the issuance fromtime to time of Shares of any class or series, whether now or hereafter authorized, or securities or rights convertible into Shares of any class or series, whether now or hereafter authorized, for such consideration as the Board of Directors maydeem advisable (including as compensation for the Independent Directors or without consideration in the case of a stock split or stock dividend), subject to such restrictions or limitations, if any, as may

 
19 

be set forth in the Charter or the Bylaws. The issuance of Preferred Shares shall also be approved by a majority of Independent Directors not otherwise interested in the transaction, who shallhave access at the Corporation’s expense to the Corporation’s legal counsel or to independent legal counsel. 

**Section******** 7.8 Preemptive Rights and Appraisal Rights.** Except as may be provided by the Board of Directors insetting the terms of classified or reclassified Shares pursuant to Section 5.4 or as may otherwise be provided by contract approved by the Board of Directors, no holder of Shares shall, as such holder, have any preemptive right to purchase orsubscribe for any additional Shares or any other security that the Corporation may issue or sell. Holders of Shares shall not be entitled to exercise any rights of an objecting stockholder provided for under Title 3, Subtitle 2 of the MGCL or anysuccessor statute unless the Board of Directors, upon such terms and conditions as may be specified by the Board of Directors, shall determine that such rights apply, with respect to all or any classes or series of Shares, to one or moretransactions occurring after the date of such determination in connection with which holders of such Shares would otherwise be entitled to exercise such rights. 

**Section******** 7.9 Determinations by Board.** The determination as to any of the following matters, made by or pursuantto the direction of the Board of Directors consistent with the Charter, shall be final and conclusive and shall be binding upon the Corporation and every holder of Shares: 

(a) the amount of the Net Income for any period and the amount of assets at any time legally available for the payment ofdividends, repurchase of Shares or the payment of other Distributions on Shares; 

(b) the amount of paid-in surplus, Net Assets, other surplus, annual or other cash flow, funds from operations, net profit, Net Assets in excess of capital, undivided profits or excess of profits over losses on Sales of assets; 

(c) the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and thepropriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); 

(d) any interpretation or resolution of any ambiguity with respect to any provision of the Bylaws or the Charter, including,without limitation: (i) any of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or other Distributions, qualifications or terms or conditions of redemption of any class orseries of Shares, (ii) any provision of the definitions of any of the following: Affiliate, Independent Director and Sponsor, (iii) which amounts paid to the Advisor or its Affiliates are expenses connected with the ownership of realestate interests, loans or other property, (iv) which expenses are excluded from the definition of Total Operating Expenses, (v) whether expenses qualify as Organization and Offering Expenses, (vi) whether an investment is considereda commodity or commodity future contract and whether a futures contract is used solely for hedging purposes in connection with the Corporation’s ordinary business of investing in real estate assets, Mortgages and Real Estate-Related Securitiesas contemplated by Section 9.3(b), and (vii) whether substantial justification exists to invest in or make a Mortgage as contemplated by Section 9.3(d) because of the presence of other underwriting criteria; 

(e) the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held bythe Corporation or any Shares; the number of Shares of any class of the Corporation; 

(f) any matter relating to theacquisition, holding and disposition of any assets of the Corporation; 

(g) any interpretation of the terms and conditionsof one or more agreements with any Person; or 

(h) any other matter relating to the business and affairs of the Corporationor required or permitted by applicable law, the Charter or Bylaws or otherwise to be determined by the Board of Directors;* provided*,* however*, that any determination by the Board of Directors as to any of the preceding mattersshall not render invalid or improper any action taken or omitted prior to such determination and no Director shall be liable for making or failing to make such a determination. 

**Section******** 7.10 REIT Qualification.** If the Corporation elects to qualify for federal income tax treatment as aREIT, the Board of Directors shall use its reasonable best efforts to take such actions as are necessary or appropriate to preserve the status of the Corporation as a REIT; however, if the Board of Directors determines that it is no longer in thebest interests of the Corporation to attempt to, or continue to qualify as a REIT, the Board of Directors may 

 
20 

revoke or otherwise terminate the Corporation’s REIT election pursuant to Section 856(g) of the Code. The Board of Directors also may determine that compliance with any restriction orlimitation on stock ownership and Transfers set forth in Article VI is no longer required for REIT qualification. 

**Section******** 7.11 Board Action with Respect to Certain Matters.** A majority of the Independent Directors must approveany Board action to which the following sections of the NASAA REIT Guidelines apply: II.A., II.F., II.G., IV.A., IV.B., IV.C., IV.D., IV.E., IV.F., IV.G., V.E., V.H., V.J., VI.A., VI.B.4 and VI.G. 

**Section******** 7.12 Ratification of Charter.** At the first meeting of the Board of Directors at which a majority of theBoard of Directors consists of Independent Directors, the Board of Directors and the Independent Directors shall each review and ratify the Charter by majority vote. 

**ARTICLE VIII**

**ADVISOR**

**Section******** 8.1 Appointment of Advisor and Initial Investment.** The Board is responsible for setting thegeneral policies of the Corporation and for the general supervision of its business conducted by officers, agents, employees, advisors or independent contractors of the Corporation. However, the Board is not required personally to conduct thebusiness of the Corporation, and it may (but need not) appoint, employ or contract with any Person (including a Person that is an Affiliate of any Director) as an Advisor and may grant or delegate such authority to the Advisor as the Board may, inits sole discretion, deem necessary or desirable. The term of retention of any Advisor shall not exceed one year, although there is no limit to the number of times that a particular Advisor may be retained. The Sponsor or its Affiliates have made anInitial Investment of $200,000 in the Corporation. The Sponsor or such Affiliate may not sell the Initial Investment while the Sponsor or any affiliate thereof serves as the Sponsor, but may transfer the Initial Investment to other Affiliates. 

**Section******** 8.2 Supervision of Advisor.** The Board shall review and evaluate the qualifications of the Advisorbefore entering into, and shall evaluate the performance of the Advisor before renewing, an Advisory Agreement, and the criteria used in such evaluation shall be reflected in the minutes of the meetings of the Board. The Board may exercise broaddiscretion in allowing the Advisor to administer and regulate the operations and investment activities of the Corporation, to act as agent for the Corporation, to execute documents on behalf of the Corporation and to make executive decisions thatconform to general policies and principles established by the Board. The Board shall monitor the Advisor to assure that the administrative procedures, operations and programs of the Corporation are in the best interests of the Stockholders and arefulfilled. The Independent Directors are responsible for reviewing the fees and expenses of the Corporation at least annually or with sufficient frequency to determine that the fees and expenses incurred are reasonable in light of the investmentperformance of the Corporation, its Net Assets, its Net Income and the fees and expenses of other comparable unaffiliated REITs. Each such determination shall be reflected in the minutes of the meetings of the Board. The Independent Directors alsowill be responsible for reviewing, from time to time and at least annually, the performance of the Advisor and determining that compensation to be paid to the Advisor is reasonable in relation to the nature and quality of services performed and thatsuch compensation is within the limits prescribed by the Charter. The Independent Directors shall also supervise the performance of the Advisor and the compensation paid to the Advisor by the Corporation in order to determine that the provisions ofthe Advisory Agreement are being carried out. Specifically, the Independent Directors will consider factors such as (a) the amount of the fee paid to the Advisor in relation to the size, composition and performance of the assets of theCorporation, (b) the success of the Advisor in generating opportunities that meet the investment objectives of the Corporation, (c) rates charged to other REITs and to investors other than REITs by advisors performing the same or similarservices, (d) additional revenues realized by the Advisor and its Affiliates through their relationship with the Corporation, including loan administration, underwriting or broker commissions, servicing, engineering, inspection and other fees,whether paid by the Corporation or by others with whom the Corporation does business, (e) the quality and extent of service and advice furnished by the Advisor, (f) the performance of the assets of the Corporation, including income,conservation or appreciation of capital, frequency of problem investments and competence in dealing with distress situations, and (g) the quality of the assets of the Corporation relative to the investments generated by the Advisor for its ownaccount. The Independent Directors may also consider all other factors that they deem relevant, and the findings of the Independent Directors on each of 

 
21 

the factors considered shall be recorded in the minutes of the Board. The Board shall determine whether any successor Advisor possesses sufficient qualifications to perform the advisory functionfor the Corporation and whether the compensation provided for in its contract with the Corporation is justified. 

**Section******** 8.3 Fiduciary Obligations.** The Advisor shall have a fiduciary responsibility and duty to theCorporation and to the Stockholders. 

**Section******** 8.4 Term and Termination.** The Advisory Agreement shall have aterm of no more than one year, subject to an unlimited number of successive one-year renewals upon mutual consent of the parties. A majority of the Independent Directors may terminate the Advisory Agreement on60 days’ written notice without cause or penalty, and, in such event, the Advisor will cooperate with, and take all reasonable steps requested to assist, the Corporation and the Board in making an orderly transition of the advisory function.

**Section******** 8.5 Disposition Fee on Sale of Property.** The Corporation may pay the Advisor a real estatecommission upon the Sale of one or more Properties, in an amount equal to the lesser of (a) one-half of the Competitive Real Estate Commission or (b) 3% of the sales price of such Property orProperties. Payment of such fee may be made only if the Advisor provides a substantial amount of services in connection with the Sale of such Property or Properties, as determined by a majority of the Independent Directors. In addition, the amountpaid when added to all other real estate commissions paid to unaffiliated parties in connection with such Sale shall not exceed the lesser of the Competitive Real Estate Commission or an amount equal to 6% of the sales price of such Property orProperties. 

**Section******** 8.6 Incentive Fees.** The Corporation may pay the Advisor an interest in the gain fromthe Sale of assets, for which full consideration is not paid in cash or property of equivalent value, provided the amount or percentage of such interest is reasonable. Such an interest in gain from the Sale of assets shall be consideredpresumptively reasonable if it does not exceed 15% of the balance of such net proceeds remaining after payment to holders of Common Shares, in the aggregate, of an amount equal to 100% of the Invested Capital, plus an amount equal to 6% of theInvested Capital per annum cumulative. In the case of multiple Advisors, such Advisor and any of their Affiliates shall be allowed such fees provided such fees are distributed by a proportional method reasonably designed to reflect the value addedto the assets by each respective Advisor or any Affiliate. 

**Section******** 8.7 Acquisition Fees.** The Corporationmay pay the Advisor and its Affiliates fees for the review and evaluation of potential investments in assets of the Corporation;* provided*,* however*, that the total of all Acquisition Fees and Acquisition Expenses shall bereasonable, and shall not exceed an amount equal to 6% of the Contract Purchase Price or, in the case of a Mortgage, 6% of the funds advanced; and* provided*,* further*, that a majority of the Directors (including a majority ofthe Independent Directors) not otherwise interested in the transaction may approve fees and expenses in excess of this limit if they determine the transaction to be commercially competitive, fair and reasonable to the Corporation. 

**Section******** 8.8 Reimbursement for Total Operating Expenses.** The Corporation may reimburse the Advisor, at the endof each fiscal quarter, for Total Operating Expenses paid by the Advisor;* provided*,* however*, that commencing upon the earlier to occur of four fiscal quarters after (i) the Corporation’s acquisition of its firstasset or (ii) six months after the date on which the Corporation breaks escrow for the Initial Public Offering, the Corporation shall not reimburse the Advisor at the end of any fiscal quarter for Total Operating Expenses that, in the fourconsecutive fiscal quarters then ended, exceed the greater of 2% of Average Invested Assets or 25% of Net Income (the “2%/25% Guidelines”) for such four fiscal quarters. The Independent Directors shall have the fiduciaryresponsibility of limiting Total Operating Expenses to amounts that do not exceed the 2%/25% Guidelines unless they have made a finding that, based on such unusual and non-recurring factors that they deemsufficient, a higher level of expenses (an “Excess Amount”) is justified. Within 60 days after the end of any fiscal quarter of the Corporation for which there is an Excess Amount that the Independent Directors conclude wasjustified, there shall be sent to the holders of Common Shares a written disclosure of such fact (or shall be disclosed to the holders of Common Shares in the next Quarterly Report on Form 10-Q of theCorporation or by filing a Current Report on Form 8-K with the Securities and Exchange Commission within 60 days of such quarter end), together with an explanation of the factors the Independent Directorsconsidered in determining that such Excess Amount was justified. Any such finding and the reasons in support thereof shall be reflected in the minutes of the meetings of the Board. In the event that the Independent Directors do not determine thatsuch Excess Amount is justified, the Advisor shall pay the Corporation the amount by which the expenses exceeded the 2%/25% Guidelines. 

 
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**ARTICLE IX**

**INVESTMENT POLICIES AND LIMITATIONS**

**Section******** 9.1 Review of Investment Policies.** The Board shall establish written policies on investments andborrowing and shall monitor the administrative procedures, investment operations and performance of the Corporation and the Adviser to assure that such policies are carried out. The Independent Directors shall review the investment policies of theCorporation with sufficient frequency (and, upon Commencement of the Initial Public Offering, not less often than annually) to determine that the policies being followed by the Corporation are in the best interests of its Stockholders. Each suchdetermination and the basis therefor shall be set forth in the minutes of the meetings of the Board. 

**Section 9.2 CertainInvestment Restrictions.**

(a) The Corporation may invest in Joint Ventures with the Sponsor, the Advisor, one or more Directors or anyAffiliate thereof, only if a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transaction approve such investment as being fair and reasonable to the Corporation and on substantially the sameterms and conditions as, or more favorable than, those received by other joint venturers. 

(b) Subject to any limitations inSection 9.3, the Corporation may invest in equity securities, provided that such investment shall be permitted only if a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transactionapprove such investment as being fair, competitive and commercially reasonable. 

**Section******** 9.3 Investment and OtherLimitations.** In addition to other investment restrictions and guidelines imposed by the Board from time to time, consistent with the Corporation’s objective of qualifying as a REIT, the following limitations shall apply: 

(a) Not more than 10% of the Corporation’s total assets shall be invested in Unimproved Real Property or indebtednesssecured by a deed of trust or Mortgages on Unimproved Real Property. 

(b) The Corporation shall not invest in commoditiesor commodity future contracts. This limitation is not intended to apply to derivatives related to non-commodity investments, including futures contracts when used solely for the purpose of hedging inconnection with the Corporation’s ordinary business of investing in real estate assets, Mortgages and Real Estate-Related Securities. 

(c) The Corporation shall not invest in or make any Mortgage (excluding any investments in mortgage pools, commercialmortgage-backed securities or residential mortgage-backed securities) unless an appraisal is obtained concerning the underlying property except for those loans insured or guaranteed by a government or government agency. In cases in which a majorityof Independent Directors so determine, and in all cases in which the transaction is with the Advisor, the Sponsor, any Director or any Affiliate thereof, such appraisal of the underlying property must be obtained from an Independent Appraiser. Suchappraisal shall be maintained in the Corporation’s records for at least five years and shall be available for inspection and duplication by any holder of Common Shares. In addition to the appraisal, a mortgagee’s or owner’s titleinsurance policy as to the priority of the Mortgage or condition of the title must be obtained. 

(d) The Corporation shallnot invest in or make any Mortgage, including a construction loan but excluding any investments in mortgage pools, commercial mortgage-backed securities or residential mortgage-backed securities, on any one Real Property if the aggregate amount ofall mortgage loans on such Real Property, would exceed an amount equal to 85% of the appraised value of such Real Property as determined by appraisal unless substantial justification exists because of the presence of other underwriting criteria. Forpurposes of this subsection, the “aggregate amount of all mortgage loans outstanding on the property, including the loans of the Corporation” shall include all interest (excluding contingent participation

 
23 

in income and/or appreciation in value of the mortgaged property), the current payment of which may be deferred pursuant to the terms of such loans, to the extent that deferred interest on eachloan exceeds 5% per annum of the principal balance of the loan. 

(e) The Corporation shall not make or invest in anyMortgages (excluding any investments in mortgage pools, commercial mortgage-backed securities or residential mortgage-backed securities) that are subordinate to any lien or other indebtedness or equity interest of the Advisor, any Director, theSponsor or any Affiliate of the Corporation. 

(f) The Corporation shall not issue (i) equity securities redeemablesolely at the option of the holder (except that Stockholders may offer their Common Shares to the Corporation pursuant to any repurchase plan adopted by the Board on terms outlined in the Prospectus relating to any Offering, as such plan isthereafter amended in accordance with its terms); (ii) debt securities unless the historical debt service coverage (in the most recently completed fiscal year) as adjusted for known changes is sufficient to properly service that higher level ofdebt, as determined by the Board of Directors or a duly authorized officer of the Corporation; (iii) equity securities on a deferred payment basis or under similar arrangements; or (iv) options or warrants to the Advisor, the Directors,the Sponsor or any Affiliate thereof except on the same terms as such options or warrants, if any, are sold to the general public. Options or warrants may be issued to Persons other than the Advisor, the Directors, the Sponsor or any Affiliatethereof, but not at exercise prices less than the fair market value of the underlying securities on the date of grant and not for consideration (which may include services) that in the judgment of the Independent Directors has a market value lessthan the value of such option or warrant on the date of grant. Options or warrants granted to the Advisor, the Directors, the Sponsor or any Affiliate thereof shall not be exercisable for a number of Shares that exceeds 10% of the outstanding Shareson the date of grant. The voting rights per Share (other than any publicly held Share) sold in a private offering shall not exceed the voting rights that bear the same relationship to the voting rights of a publicly held Share as the considerationpaid to the Corporation for each privately offered Share bears to the book value of each outstanding publicly held Share. 

(g) A majority of Directors shall determine that the consideration paid for Real Property acquired by the Corporation shallordinarily be based on the fair market value of the Real Property. If a majority of the Independent Directors on the Board of Directors or a duly authorized committee of the Board determines, or if the Real Property is acquired from the Advisor, aDirector, the Sponsor or their Affiliates, such fair market value shall be determined by a qualified Independent Appraiser selected by such Independent Directors. 

(h) The aggregate Leverage shall be reasonable in relation to the Net Assets and shall be reviewed by the Board at leastquarterly. The maximum amount of such Leverage in relation to Net Assets shall not exceed 300%. Notwithstanding the foregoing, Leverage may exceed such limit if any excess in borrowing over such level is approved by a majority of the IndependentDirectors. Any such excess borrowing shall be disclosed to Stockholders in the next quarterly report of the Corporation following such borrowing, along with justification for such excess. 

(i) The Corporation will not make any investment that the Corporation believes will cause it to be classified as an“investment company” under the Investment Company Act of 1940, as amended. 

(j) The Corporation will not make anyinvestment that the Corporation believes will be inconsistent with its objectives of qualifying and remaining qualified as a REIT unless and until the Board determines, in its sole discretion, that REIT qualification is not in the best interests ofthe Corporation. 

(k) The Corporation shall not invest in real estate contracts of sale, otherwise known as land salecontracts, unless the contract is in recordable form and is appropriately recorded in the chain of title. 

(l) TheCorporation shall not engage in the business of underwriting or the agency distribution of securities issued by other Persons. 

(m) The Corporation shall not acquire interests or securities in any entity holding investments or engaging in activitiesprohibited by this Article IX except for investments in which the Corporation holds a non-controlling interest or investments in any entity having securities listed on a national securities exchange orincluded for quotation on an interdealer quotation system. 

 
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**ARTICLE X**

**CONFLICTS OF INTEREST**

**Section******** 10.1 Sales and Leases to the Corporation.** The Corporation may purchase or lease an asset or assets fromthe Sponsor, the Advisor, a Director or any Affiliate thereof upon a finding by a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transaction that such transaction is fair and reasonable to theCorporation and at a price to the Corporation no greater than the cost of the asset to such Sponsor, Advisor, Director or Affiliate or, if the price to the Corporation is in excess of such cost, that substantial justification for such excess existsand such excess is reasonable. In no event shall the purchase price paid by the Corporation for any such asset exceed the asset’s current appraised value. 

**Section******** 10.2 Sales and Leases to the Sponsor, Advisor, Directors or Affiliates.** The Advisor, the Sponsor, aDirector or any Affiliate thereof may purchase or lease an asset or assets from the Corporation if a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transaction determine that the transaction isfair and reasonable to the Corporation. 

**Section 10.3 Other Transactions.**

(a) The Corporation shall not make loans to the Sponsor, the Advisor, a Director or any Affiliate thereof except Mortgages pursuant toSection 9.3(c), (d) and (e) hereof or loans to wholly owned subsidiaries of the Corporation. This restriction on loans applies only to advances of cash that are commonly viewed as loans, as determined by the Board of Directors, anddoes not apply to advances of cash for legal expenses or other costs incurred as a result of any legal action for which indemnification is being sought nor does it limit the Corporation’s ability to advance reimbursable expenses incurred byDirectors or officers or the Advisor or its Affiliates. 

(b) The Corporation may not borrow money from the Sponsor, the Advisor, aDirector or any Affiliate thereof, unless approved by a majority of the Directors (including a majority of the Independent Directors) not otherwise interested in such transaction as fair, competitive, and commercially reasonable, and no lessfavorable to the Corporation than comparable loans between unaffiliated parties under the same circumstances. 

(c) The Corporation shallnot engage in any other transaction with the Sponsor, the Advisor, a Director or any Affiliate thereof unless a majority of the Directors (including a majority of the Independent Directors) not otherwise interested in such transaction approve suchtransaction as fair and reasonable to the Corporation and on terms and conditions no less favorable to the Corporation than those available from unaffiliated third parties. 

**ARTICLE XI**

**STOCKHOLDERS**

**Section******** 11.1 Meetings.** There shall be an annual meeting of the Stockholders, to be held on such date and atsuch time and place as shall be determined by or in the manner prescribed in the Bylaws, at which the Directors shall be elected and any other proper business may be conducted; provided that such annual meeting will be held upon reasonable noticeand within a reasonable period (not less than 30 days) following delivery of the annual report. The Board of Directors, including the Independent Directors, shall be required to take reasonable steps to ensure that this requirement is met. Theholders of a majority of Shares entitled to vote who are present in person or by proxy at an annual meeting at which a quorum is present, may, without the necessity for concurrence by the Board, vote to elect the Directors. A quorum shall be thepresence in person or by proxy of Stockholders entitled to cast at least 50% of all the votes entitled to be cast at such meeting on any matter. Special meetings of Stockholders may be called in the manner provided in the Bylaws, including by thechief executive officer, the president or the chairman of the board or by a majority of the Directors or a majority of the Independent Directors, and shall be called by the secretary of the Corporation to act on any matter that may properly beconsidered at a meeting of Stockholders upon the written request of Stockholders entitled to cast not less than 10% of all the votes entitled to be cast on such matter at such meeting. Notice of any special meeting of Stockholders shall be given asprovided in the 

 
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Bylaws. If the meeting is called by the secretary upon the written request of Stockholders as described in this Section 11.1, notice of the special meeting shall be sent to all Stockholderswithin 10 days of the receipt of the written request and the special meeting shall be held at the time and place specified in the Stockholder request not less than 15 days nor more than 60 days after the delivery of thenotice;* provided*,* however*, that if no time or place is so specified in the Stockholder request, at such time and place convenient to the Stockholders. If there are no Directors, the officers of the Corporation shall promptlycall a special meeting of the Stockholders entitled to vote for the election of successor Directors. Any meeting may be adjourned and reconvened as the Board may determine or as otherwise provided in the Bylaws. 

**Section******** 11.2 Voting Rights of Stockholders.** Subject to the provisions of any class or series of Shares thenoutstanding and the mandatory provisions of any applicable laws or regulations, the Stockholders shall be entitled to vote only on the following matters: (a) election or removal of Directors, without the necessity for concurrence by the Board,as provided in Sections 11.1 hereof; (b) amendment of the Charter as provided in Article XIII hereof; (c) dissolution of the Corporation; (d) merger, conversion or consolidation of the Corporation, a statutory share exchange or thesale or other disposition of all or substantially all of the Corporation’s assets; and (e) such other matters with respect to which the Board of Directors has adopted a resolution declaring that a proposed action is advisable and directingthat the matter be submitted to the Stockholders for approval or ratification. Without the approval of a majority of the Shares entitled to vote on the matter, the Board may not (i) amend the Charter to adversely affect the rights, preferencesand privileges of the Stockholders; (ii) amend provisions of the Charter relating to Director qualifications, fiduciary duties, liability and indemnification, conflicts of interest, investment policies or investment restrictions;(iii) liquidate or dissolve the Corporation other than before the initial investment in Property; (iv) sell all or substantially all of the Corporation’s assets other than in the ordinary course of business or as otherwise permittedby law; or (v) cause the merger or reorganization of the Corporation except as permitted by law. 

**Section******** 11.3Voting Limitations on Shares Held by the Advisor, Directors and Affiliates.** With respect to Shares owned by the Advisor, any Director or any Affiliate, neither the Advisor, nor such Director(s), nor any of their Affiliates may vote orconsent on matters submitted to the Stockholders regarding the removal of the Advisor, such Director(s) or any of their Affiliates or any transaction between the Corporation and any of them. In determining the requisite percentage in interest ofShares necessary to approve a matter on which the Advisor, such Director and any of their Affiliates may not vote or consent, any Shares owned by any of them shall not be included. 

**Section******** 11.4 Right of Inspection.** Any holder of Common Shares and any designated representative thereof shallbe permitted access to the records of the Corporation to which it is entitled under applicable law at all reasonable times, and may inspect and copy any of them for a reasonable charge. Inspection of the Corporation’s books and records by theoffice or agency administering the securities laws of a jurisdiction shall be provided upon reasonable notice and during normal business hours. 

**Section******** 11.5 Access to Stockholder List.** An alphabetical list of the names, addresses and telephone numbers ofthe holders of Common Shares, along with the number of Shares held by each of them (the “Stockholder List”), shall be maintained as part of the books and records of the Corporation and shall be available for inspection by any holderof Common Shares or such holder’s designated agent at the home office of the Corporation upon the request of the holder of Common Shares. The Stockholder List shall be updated at least quarterly to reflect changes in the information containedtherein. A copy of the Stockholder List shall be mailed to any holder of Common Shares so requesting within ten days of receipt by the Corporation of the request. The copy of the Stockholder List shall be printed in alphabetical order, on whitepaper, and in a readily readable type size (in no event smaller than ten-point type). The Corporation may impose a reasonable charge for expenses incurred in reproduction pursuant to such holder’srequest. The purposes for which a holder of Common Shares may request a copy of the Stockholder List include, without limitation, matters relating to such holder’s voting rights, the exercise of such holder’s rights under federal proxylaws and any other proper purpose. 

If the Advisor or the Board neglects or refuses to exhibit, produce or mail a copy of the StockholderList as requested, the Advisor and/or the Board, as the case may be, shall be liable to any holder of Common Shares requesting the Stockholder List for the costs, including reasonable attorneys’ fees, incurred by such holder of Common Sharesfor compelling the production of the Stockholder List, and for actual damages suffered by any holder of Common Shares by reason of such refusal or neglect. It shall be a defense that the actual purpose and

 
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reason for the requests for inspection or for a copy of the Stockholder List is to secure the Stockholder List or other information for the purpose of selling the Stockholder List or copiesthereof, or of using the same for a commercial purpose other than in the interest of the applicant as a holder of Common Shares relative to the affairs of the Corporation. The Corporation may require the holder of Common Shares requesting theStockholder List to represent that the Stockholder List is not requested for a commercial purpose unrelated to such holder’s interest in the Corporation. The remedies provided hereunder to holders of Common Shares requesting copies of theStockholder List are in addition to, and shall not in any way limit, other remedies available to holders of Common Shares under federal law or the laws of any state. 

**Section******** 11.6 Reports.** For each fiscal year after the Commencement of the Initial Public Offering, theDirectors, including the Independent Directors, shall take reasonable steps to insure that the Corporation shall cause to be prepared and mailed or delivered to each holder of Common Shares as of a record date after the end of the fiscal year,within 120 days after the end of the fiscal year to which it relates, an annual report that shall include: (a) financial statements prepared in accordance with generally accepted accounting principles that are audited and reported on byindependent certified public accountants; (b) the ratio of the costs of raising capital during the period to the capital raised; (c) the aggregate amount of advisory fees and the aggregate amount of other fees paid to the Advisor and anyAffiliate of the Advisor by the Corporation and including fees or charges paid to the Advisor and any Affiliate of the Advisor by third parties doing business with the Corporation; (d) the Total Operating Expenses of the Corporation, stated asa percentage of Average Invested Assets and as a percentage of its Net Income; (e) a report from the Independent Directors that the policies being followed by the Corporation are in the best interests of the holders of Common Shares and thebasis for such determination; and (f) separately stated, full disclosure of all material terms, factors and circumstances surrounding any and all transactions involving the Corporation, the Directors, the Advisor, the Sponsors and any Affiliatethereof occurring in the year for which the annual report is made, and the Independent Directors shall be specifically charged with a duty to examine and comment in the report on the fairness of such transactions. Alternatively, such information maybe provided in a proxy statement delivered with the annual report. The annual report and proxy statement may be delivered by any reasonable means, including through an electronic medium. Electronic delivery of the annual report or proxy statementshall comply with any then-applicable rules of the Securities and Exchange Commission. 

**Section 11.7 Tender Offers.**

(a) If any Person makes a tender offer for Shares, including, without limitation, a “mini-tender” offer, such Person (a“Bidder”) must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including, without limitation, disclosure and notice requirements, that would be applicable if the tender offer was for more than 5%of the outstanding Shares; provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any Bidder must provide notice to the Corporation at least 10 Business Days prior to initiatingany such tender offer. If any Bidder initiates a tender offer without complying with the foregoing (a “Non-Compliant Tender Offer”), the Corporation may elect to publish, send or give toStockholders and the Bidder a statement (a “Position Statement”), which Position Statement may be posted on the Corporation’s website, disclosing that the Corporation (a) recommends acceptance or rejection of the Non-Compliant Tender Offer, (b) expresses no opinion and is remaining neutral toward the Non-Compliant Tender Offer, or (c) is unable to take a position with respectto the Non-Compliant Tender Offer. If the Corporation issues a Position Statement but does not recommend acceptance of the Non-Compliant Tender Offer, then theCorporation may elect to cause the rescission provisions of paragraph (b) of this Section 11.7 to be applicable by including a notice of such election (a “11.7(b) notice”) in the Position Statement within 10 Business Daysof the Corporation becoming aware of the commencement of the Non-Compliant Tender Offer: 

(b) Ifthe Corporation includes a 11.7(b) notice in a Position Statement, and any Stockholder who tendered Shares in connection with the Non-Compliant Tender Offer delivers a notice (a “RescissionNotice”) to the Corporation within 30 days of issuance of the Position Statement indicating a desire to rescind such Stockholder’s tender, then such purported tender shall be void ab initio and the Bidder shall acquire no rights insuch Shares and the Stockholder who delivered the Rescission Notice shall continue to have all rights in such Shares. Until the expiration of this 30-day period, the Corporation shall not record a transfer ofShares to the Bidder or its assignee in connection with the Tender Offer. 

 
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(c) In addition, unless waived by the Corporation, any Person who makes a Non-Compliant Tender Offer that is not recommended by the Corporation in the Position Statement shall be responsible for all expenses incurred by the Corporation in connection with (x) its review andconsideration of the Non-Compliant Tender Offer, including board of directors meeting costs and the costs of counsel and financial advisors, (y) the publication and/or distribution of the PositionStatement, including printing and mailing costs, and (z) the enforcement of the provisions of this Section 11.7. In addition to the remedies provided herein, the Corporation may seek injunctive relief, including, without limitation, atemporary or permanent restraining order, in connection with any Non-Compliant Tender Offer. 

(d)This Section 11.7 shall be of no force or effect with respect to any Shares that are then Listed as of the date of the commencement of the tender offer. 

**ARTICLE XII**

**LIABILITYLIMITATION AND INDEMNIFICATION**

**Section******** 12.1 Limitation of Stockholder Liability.** No Stockholder shallbe liable for any debt, claim, demand, judgment or obligation of any kind of, against or with respect to the Corporation by reason of his being a Stockholder, nor shall any Stockholder be subject to any personal liability whatsoever, in tort,contract or otherwise, to any Person in connection with the assets or the affairs of the Corporation by reason of his being a Stockholder. 

**Section 12.2 Limitation of Director and Officer Liability.**

(a) Subject to any limitations set forth under Maryland law or in paragraph 12.2(b), no Director or officer of the Corporation shall be liableto the Corporation or its Stockholders for money damages. Neither the amendment nor repeal of this Section 12.2(a), nor the adoption or amendment of any other provision of the Charter or Bylaws inconsistent with this Section 12.2(a), shallapply to or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption. 

(b) Notwithstanding anything to the contrary contained in paragraph (a) above, the Corporation shall not provide that a Director, theAdvisor or any Affiliate of the Corporation or the Advisor (the “Indemnitee”) be held harmless for any loss or liability suffered by the Corporation, unless all of the following conditions are met: 

(i) The Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the bestinterests of the Corporation. 

(ii) The Indemnitee was acting on behalf of or performing services for the Corporation. 

(iii) Such liability or loss was not the result of (A) negligence or misconduct, in the case that the Indemnitee is aDirector (other than an Independent Director), the Advisor or an Affiliate of the Corporation or the Advisor or (B) gross negligence or willful misconduct, in the case that the Indemnitee is an Independent Director. 

(iv) Such agreement to hold harmless is recoverable only out of Net Assets and not from the Stockholders. 

**Section 12.3 Indemnification.**

(a) Subject to any limitations set forth under Maryland law or in paragraph (b) or (c) below, the Corporation shall indemnify and,without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (i) any individual who is a present or former Director orofficer of the Corporation and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity, (ii) any individual who, while a Director or officer of the Corporation and at the request of theCorporation, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or otherenterprise and who is made or threatened to be made a party to the 

 
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proceeding by reason of his or her service in that capacity or (iii) the Advisor or any of its Affiliates acting as an agent of the Corporation. The rights to indemnification and advance ofexpenses provided to a Director or officer hereby shall vest immediately upon election of such Director or officer. The Corporation may, with the approval of the Board of Directors or any duly authorized committee thereof, provide suchindemnification and advance for expenses to a Person who served a predecessor of the Corporation in any of the capacities described in (i) or (ii) above and to any employee or agent of the Corporation or a predecessor of the Corporation.The Board may take such action as is necessary to carry out this Section 12.3(a). No amendment of the Charter or repeal of any of its provisions shall limit or eliminate the right of indemnification provided hereunder with respect to acts oromissions occurring prior to such amendment or repeal. 

(b) Notwithstanding anything to the contrary contained in paragraph(a) above, the Corporation shall not provide for indemnification of an Indemnitee for any liability or loss suffered by such Indemnitee, unless all of the following conditions are met: 

(i) The Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the bestinterests of the Corporation. 

(ii) The Indemnitee was acting on behalf of or performing services for the Corporation. 

(iii) Such liability or loss was not the result of (A) negligence or misconduct, in the case that the Indemnitee is aDirector (other than an Independent Director), the Advisor or an Affiliate or (B) gross negligence or willful misconduct, in the case that the Indemnitee is an Independent Director. 

(iv) Such indemnification or agreement to hold harmless is recoverable only out of Net Assets and not from the Stockholders.

(c) Notwithstanding anything to the contrary contained in paragraph (a) above, the Corporation shall not provide indemnification toan Indemnitee for any loss, liability or expense arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudicationon the merits of each count involving alleged securities law violations as to the Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or (iii) a court ofcompetent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised ofthe position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities were offered or sold as to indemnification for violations of securities laws. 

**Section******** 12.4 Payment of Expenses.** The Corporation may pay or reimburse reasonable legal expenses and othercosts incurred by an Indemnitee in advance of final disposition of a proceeding only if all of the following are satisfied: (a) the proceeding relates to acts or omissions with respect to the performance of duties or services on behalf of theCorporation, (b) the Indemnitee provides the Corporation with written affirmation of the Indemnitee’s good faith belief that the Indemnitee has met the standard of conduct necessary for indemnification by the Corporation as authorized bySection 12.3 hereof, (c) the legal proceeding was initiated by a third party who is not a Stockholder or, if by a Stockholder of the Corporation acting in his or her capacity as such, a court of competent jurisdiction approves suchadvancement, and (d) the Indemnitee provides the Corporation with a written agreement to repay the amount paid or reimbursed by the Corporation, together with the applicable legal rate of interest thereon, if it is ultimately determined thatthe Indemnitee did not comply with the requisite standard of conduct and is not entitled to indemnification. 

**Section******** 12.5 Express Exculpatory Clauses in Instruments.** Neither the Stockholders nor the Directors, officers,employees or agents of the Corporation shall be liable under any written instrument creating an obligation of the Corporation by reason of their being Stockholders, Directors, officers, employees or agents of the Corporation, and all Persons shalllook solely to the Corporation’s assets for the payment of any claim under or for the performance of that instrument. The omission of the foregoing exculpatory language from any instrument shall not affect the validity or enforceability of suchinstrument and shall not render any Stockholder, Director, officer, employee or agent liable thereunder to any third party, nor shall the Directors or any officer, employee or agent of the Corporation be liable to anyone as a result of suchomission. 

 
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**ARTICLE XIII**

**AMENDMENTS**

TheCorporation reserves the right from time to time to make any amendment to the Charter, now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in the Charter, of any Shares. Allrights and powers conferred by the Charter on Stockholders, Directors and officers are granted subject to this reservation. Except for those amendments permitted to be made without Stockholder approval under Maryland law or by specific provision inthe Charter, any amendment to the Charter shall be valid only if approved by the affirmative vote of a majority of all votes entitled to be cast on the matter, including without limitation, (a) any amendment which would adversely affect therights, preferences and privileges of the Stockholders and (b) any amendment to Sections 7.2 and 7.5 of Article VII, Article IX, Article X, Article XII, Article XIV hereof and this Article XIII (or any other amendment of the Charter thatwould have the effect of amending such sections). 

**ARTICLE XIV**

**ROLL-UP TRANSACTIONS**

In connection with any proposed Roll-Up Transaction, an appraisal of all of the Corporation’sassets shall be obtained from a competent Independent Appraiser. If the appraisal will be included in a prospectus used to offer the securities of a Roll-Up Entity, the appraisal shall be filed with theSecurities and Exchange Commission and the states as an exhibit to the registration statement for the offering. The Corporation’s assets shall be appraised on a consistent basis, and the appraisal shall be based on the evaluation of allrelevant information and shall indicate the value of the assets as of a date immediately prior to the announcement of the proposed Roll-Up Transaction. The appraisal shall assume an orderly liquidation of theassets over a twelve-month period. The terms of the engagement of the Independent Appraiser shall clearly state that the engagement is for the benefit of the Corporation and the Stockholders. A summary of the appraisal, indicating all materialassumptions underlying the appraisal, shall be included in a report to Stockholders in connection with a proposed Roll-Up Transaction. In connection with a proposedRoll-Up Transaction, the Person sponsoring the Roll-Up Transaction shall offer to holders of Common Shares who vote against the proposedRoll-Up Transaction the choice of: 

(a) accepting the securities of a Roll-Up Entity offered in the proposed Roll-Up Transaction; or 

(b) one of the following: 

(i) remaining as Stockholders and preserving their interests therein on the same terms and conditions as existed previously; or

(ii) receiving cash in an amount equal to the Stockholder’s pro rata share of the appraised value of the Net Assets.

The Corporation is prohibited from participating in any proposed Roll-Up Transaction: 

(a) that would result in the holders of Common Shares having democracy rights in aRoll-Up Entity that are less than the rights provided for in Sections 11.1, 11.2, 11.3, 11.6 and 12.1 hereof; 

(b) that includes provisions that would operate as a material impediment to, or frustration of, the accumulation of Shares byany purchaser of the securities of the Roll-Up Entity (except to the minimum extent necessary to preserve the tax status of the Roll-Up Entity), or which would limit theability of an investor to exercise the voting rights of its securities of the Roll-Up Entity on the basis of the number of Shares held by that investor; 

(c) in which investor’s rights to access of records of the Roll-Up Entity will beless than those described in Sections 11.4 and 11.5 hereof; or 

(d) in which any of the costs of the Roll-Up Transaction would be borne by the Corporation if the Roll-Up Transaction is rejected by the holders of Common Shares. 

 
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THIRD: The amendment and restatement of the charter of the Corporation as hereinaboveset forth has been duly advised by the Board of Directors and approved by the stockholders of the Corporation as required by law. 

FOURTH: The current address of the principal office of the Corporation is as set forth in Article III of the foregoing amendment andrestatement of the charter. 

FIFTH: The name and address of the Corporation’s current resident agent is as set forth inArticle III of the foregoing amendment and restatement of the charter. 

SIXTH: The number of directors of the Corporation and thenames of those currently in office are as set forth in Article VII of the foregoing amendment and restatement of the charter. 

SEVENTH: The total number of shares of stock which the Corporation had authority to issue immediately prior to the foregoing amendmentand restatement of the charter of the Corporation was 1,000,000, consisting of 1,000,000 shares of common stock, $0.01 par value per share, all of which were classified as Class I common stock. The aggregate par value of all shares of stockhaving par value was $10,000. 

EIGHTH: The total number of shares of stock which the Corporation has authority to issue pursuant tothe foregoing amendment and restatement of the charter of the Corporation is 1,100,000,000, consisting of 1,000,000,000 shares of common stock, $0.01 par value per share, 250,000,000 of which are classified as Class T common stock, 250,000,000of which are classified as Class S common stock, 250,000,000 of which are classified as Class D common stock and 250,000,000 of which are classified as Class I common stock, and 100,000,000 shares of preferred stock, $0.01 par valueper share. The aggregate par value of all authorized shares of stock having par value is $11,000,000. 

NINTH: The undersignedacknowledges these Articles of Amendment and Restatement to be the corporate act of the Corporation and as to all matters or facts required to be verified under oath, the undersigned acknowledges that to the best of his knowledge, information andbelief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury. 

[signature page follows] 

 
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IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment and Restatementto be signed in its name and on its behalf by its Chief Executive Officer and President and attested to by its Secretary on this 29th day of March, 2018. 

 
 
     STARWOOD REAL ESTATE INCOME TRUST, INC.
By: 
/s/ John P. McCarthy, Jr.
 (SEAL) Name: 
John P. McCarthy, Jr.
 Title: Chief Executive Officer, President and Director
 
 ATTEST:By: 
/s/ Matthew Guttin
 Name:    Matthew Guttin Title:    Chief Compliance Officer and Secretary
 
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